Erb v. Colvin
Filing
13
DECISION & ORDER The Commissioner's motion for judgment on the pleadings 11 is denied, and Erb's motion for judgment on the pleadings 9 is granted to the extent that the Commissioner's decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 9/15/2015. (KAH) -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
MICHAEL ERB,
DECISION & ORDER
Plaintiff,
14-CV-6258P
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Michael Erb (“Erb”) brings this action pursuant to Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his application for
Supplemental Security Income Benefits (“SSI”). Pursuant to 28 U.S.C. § 636(c), the parties
have consented to the disposition of this case by a United States magistrate judge. (Docket # 8).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 9, 11). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.
BACKGROUND
I.
Procedural Background
Erb protectively filed for SSI on March 22, 2012, alleging disability beginning on
February 4, 2011, due to bipolar disorder, attention deficit hyperactivity disorder (“ADHD”),
marijuana abuse, and nicotine addiction. (Tr. 166, 180).1 On June 4, 2012, the Social Security
Administration denied Erb’s claim for benefits, finding that he was not disabled. (Tr. 88). Erb
requested and was granted a hearing before Administrative Law Judge James G. Myles (the
“ALJ”). (Tr. 67, 97, 116-20). The ALJ conducted a hearing on March 20, 2013. (Tr. 67-87). In
a decision dated March 22, 2013, the ALJ found that Erb was not disabled and was not entitled to
benefits. (Tr. 19-27).
On April 24, 2014, the Appeals Council denied Erb’s request for review of the
ALJ’s decision. (Tr. 1-6). In the denial, the Appeals Council considered a Drug/Alcohol
evaluation submitted by Kang Yu (“Yu”), MD, dated May 3, 2013, but declined to consider a
letter submitted by Yu dated March 28, 2014. (Tr. 2). Erb commenced this action on May 16,
2014 seeking review of the Commissioner’s decision. (Docket # 1).
II.
Relevant Medical Evidence2
A.
Treatment Records
1.
Genesee Hospital
On October 16, 1986, Max W. Steiner (“Steiner”), MD, conducted a pediatric
neurodevelopmental evaluation of Erb. (Tr. 226-32). Erb, who was then approximately eight
years old, was referred for evaluation due to his classroom behavior. (Id.). According to Steiner,
1
The administrative transcript shall be referred to as “Tr. __.”
2
Those portions of the treatment records that are relevant to this decision are recounted herein.
2
intelligence testing conducted in April 1986 revealed that Erb had a verbal intelligence quotient
(“IQ”) of 97, performance IQ of 86 and a full-scale IQ of 91. (Id.). Projective testing and
classroom observation suggested that Erb suffered from behavioral problems with a tendency to
disrupt the classroom. (Id.). According to Steiner, Erb’s behavior was fidgety and impulsive
and he demonstrated a decreased attention span. (Id.).
2.
School Psychologist
James F. Elkin (“Elkin”), a school psychologist, conducted a psychological
evaluation of Erb in January 1992 when he was in the eighth grade. (Tr. 234-39). Elkin
reviewed Erb’s educational records, including previous intelligence testing. (Id.). Elkin
administered the Wechsler Intelligence Scale for Children – Revised (“WISC-R”) to Erb. (Id.).
Erb demonstrated a verbal IQ score of 85, a performance IQ score of 86 and a full-scale IQ score
of 84. (Id.). Elkin also administered the Woodcock-Johnson Psycho-Educational Battery to Erb.
(Id.). This test indicated that Erb demonstrated average proficiency in reading, below average
proficiency in general knowledge, moderate deficiency in written language, and a severe
deficiency in mathematics. (Id.). Elkin opined that Erb was uncooperative during testing and
that his earlier higher IQ scores were more likely to reflect his level of intellectual functioning.
(Id.). Elkin also opined that a behavior scale indicated that Erb demonstrated significant
behavioral problems towards peers and staff. (Id.). Elkin recommended that Erb continue to be
classified as an emotionally handicapped student and placed in a structured school setting that
emphasized behavior management. (Id.).
3.
Clifton Springs Hospital
Treatment notes indicate that Erb arrived at the emergency department of the
Clifton Springs Hospital accompanied by a police officer on January 10, 2011. (Tr. 246-54).
3
Erb reported that he had felt suicidal that day, although he did not have any definite plans to hurt
himself. (Id.). He indicated that he was depressed and under stress caused by the mother of his
son. (Id.). Erb reported previous psychiatric problems, including depression and bipolar
disorder, and that he had previously received treatment at Elmira Mental Health. (Id.). The
clinical impression included major depression, manipulative personality, and suicidal ideation.
(Id.). Erb was admitted for a psychiatric evaluation. (Id.).
Erb reported mental difficulties stemming from an ongoing custody battle with
the mother of his eight-year-old son. (Id.). Erb had reported to his landlord that he was “at the
end of his rope,” which prompted his landlord to call the police, who escorted Erb to the
emergency department. (Id.). Erb presented as controlled and cooperative, but irritable about
being at the hospital. (Id.). The doctor opined that Erb was responding to a situational stressor
and his conduct suggested a potential personality disorder, but he was not suicidal or homicidal
and did not demonstrate any other mental illness that required hospitalization. (Id.). He opined
that Erb would benefit from further treatment and diagnosed him with adjustment disorder and
personality disorder and assigned a Global Assessment of Functioning (“GAF”) of 60. (Id.). Erb
was discharged on January 11, 2011 and instructed to follow up for mental health treatment.
(Id.).
4.
Elmira Psychiatric Center
Treatment records indicate that Yu conducted a mental health evaluation of Erb at
Elmira Psychiatric Center on February 11 and 18, 2011. (Tr. 288-90, 292). Erb reported a
previous suicide attempt while he had been incarcerated, as well as a history of violent behavior.
(Id.). He denied current suicidal or homicidal ideations. (Id.). Erb reported long-standing
4
difficulties controlling his anger, which had resulted in several arrests, as well as fluctuations in
mood ranging from depression to a mixed state with dysphoric mania. (Id.).
Erb had previously been treated for ADHD when he was a teenager and had
received anger management treatment. (Id.). According to Erb, he had been prescribed Seroquel
and Paxil. (Id.). Erb reported that he had been physically abused while living with relatives.
(Id.). He also reported a significant history of alcohol and marijuana abuse, and a history of
domestic violence between his parents. (Id.).
Upon examination, Erb presented as neatly dressed and groomed. (Id.). He
demonstrated good eye contact, cooperative and friendly attitude, relevant and coherent speech,
no evidence of hallucinations or delusions, some evidence of paranoid tendency, broad affect,
neutral mood, full orientation, intact memory, and fair judgment. (Id.). Yu noted that Erb’s
speech had been accelerated and loud during his previous visit, but appeared more normal during
the evaluation, which Yu attributed to Erb’s treatment with Zyprexa. (Id.). Additionally, Yu
noted an improved mood and affect compared to the previous week’s visit. (Id.). Yu opined that
Erb’s intellectual functioning and general fund of knowledge were average, and indeed higher
than expected given Erb’s failure to complete high school as a result of his expulsion for
behavioral problems. (Id.). Erb was able to complete his serial 7’s “very fast and accurately,”
and, with some prompting, was able to identify past presidents in sequence and to identify the
biggest and most populous states. (Id.).
Yu diagnosed Erb with bipolar disorder, not otherwise specified, ADHD, not
otherwise specified, alcohol abuse, and cannabis abuse, and assessed a GAF of 62. (Id.). Yu
increased Erb’s Zyprexa dosage and recommended that Erb continue to meet regularly with his
therapist and social worker, Richard Underwood (“Underwood”). (Id.).
5
On November 30, 2011, Underwood sent a letter to Jeffrey R. Harper, Esq., in
response to a request for medical records. (Tr. 292). In the letter, Underwood stated that Erb
had been admitted for treatment at Elmira Psychiatric Center on February 4, 2011 and had been
evaluated by Yu on February 11 and 18, 2011. (Id.). Underwood reported that Erb’s attendance
at scheduled appointments was inconsistent and that he had not been seen by Yu since August 1,
2011, or by Underwood since October 26, 2011. (Id.). Underwood had no current contact
information for Erb and planned to close his case if he did not hear from Erb before December
12, 2011. (Id.).
Underwood opined that Erb was unable to sustain employment due to his limited
insight into his long-standing psychiatric issues and the manner in which those issues affected his
functioning. (Id.). Additionally, Erb’s continued use of marijuana and alcohol impeded his
functioning. (Id.). According to Underwood, Erb was unlikely to have sustained employment
success without treatment, although he was likely to improve with consistent treatment. (Id.).
Treatment notes indicate that Erb returned to Yu on January 20, January 27 and
February 10, 2012. (Tr. 293-95). Yu reported that he had initially prescribed Zyprexa, which
Erb took between February and March 2011, but Erb had complained of excessive sedation.
(Id.). According to Yu, because Erb had failed to attend appointments, he was not prescribed
any medication until January 2012, when he was prescribed Seroquel. (Id.). According to Yu,
Erb discontinued Seroquel after two days due to reported grogginess. (Id.). On January 27,
2012, Yu prescribed Clonazepam, which Erb reported made him feel calmer and in better control
of his anger. (Id.).
According to Yu, Erb’s attendance at scheduled appointments with both Yu and
Underwood had been sporadic over the prior year. (Id.). Although Erb reported that he had
6
worked the previous year, Yu indicated that Erb did not have steady employment, but worked
irregularly when work was available. (Id.). During the previous year, Erb had been working
with an attorney to assist him in obtaining SSI benefits. (Id.).
Upon examination, Erb presented with a neat appearance and good hygiene. (Id.).
He demonstrated a cooperative and friendly attitude, normal behavior, good eye contact, relevant
but accelerated speech with a slightly elevated volume, no evidence of hallucinations or
delusions, although he demonstrated suspiciousness of others, broad affect with a pleasant mood,
full orientation, alert and conscious sensorium, fairly intact memory, superficial insight, and
impaired judgment. (Id.). Yu opined that Erb demonstrated below average intellectual
functioning and fund of general knowledge, which he attributed to Erb’s failure to finish high
school due to his expulsion in the twelfth grade. (Id.). According to Yu, Erb was able to
perform serial 7’s correctly, although slowly. (Id.). Yu assessed Erb’s GAF to be 59 and
recommended that he continue taking Clonazepam. (Id.).
On May 25, 2012, Underwood reviewed Erb’s treatment progress. (Tr. 298-304).
According to Underwood, Erb had failed to attend two of the three scheduled appointments with
Yu during the previous three months. (Id.). Erb was seen by Yu on March 2, 2012 and reported
that his medications had been helpful and had assisted him in controlling his anger and
decreasing his mood fluctuations. (Id.). Erb had attended five therapy sessions with Underwood
during March and April, but none in May. (Id.). Erb had reported that he was abstaining from
marijuana and only occasionally consuming alcohol. (Id.). Erb continued to seek SSI benefits
and expressed frustration over the process. (Id.).
7
B.
Medical Opinion Evidence
1.
Christina Caldwell, PsyD
On May 23, 2012, state examiner Christina Caldwell (“Caldwell”), PsyD,
conducted a consultative psychiatric evaluation of Erb. (Tr. 266-69). Erb reported that he had
driven himself approximately forty miles to the evaluation. (Id.). Erb also reported that he lived
with his girlfriend. (Id.). He reported that he had been in special education classes in school due
to behavioral problems and had dropped out of high school in the twelfth grade. (Id.). Erb was
not currently employed and reported previous employment at a shopping center. (Id.).
According to Erb, he had worked at the shopping center for approximately three weeks before
being fired. (Id.). Erb reported that he was unable to work due to mental instability. (Id.).
According to Erb, he had been hospitalized for one day in January 2012 at Clifton
Springs Hospital due to a “mental breakdown.” (Id.). He also reported previous treatment at the
Elmira Psychiatric Center off and on since 1990. (Id.). Erb reported that he had been seeing Yu
weekly or monthly since January 2011. (Id.). Erb reported difficulty falling asleep and
increased appetite. (Id.). He complained of psychiatric problems indicated by dysphoric moods,
psychomotor retardation, loss of usual interest, fatigue, loss of energy, diminished self-esteem,
diminished sense of pleasure and social withdrawal. (Id.).
He also reported excessive apprehension and worry, irritability, restlessness,
difficulty concentrating, and muscle tension. (Id.). According to Erb, he suffered from daily
panic attacks causing symptoms of palpitations, nausea, sweating, breathing difficulties, and
trembling. (Id.). Erb reported that his depression and anxiety were equally debilitating and also
complained of short-term memory deficits and difficulties with word finding, planning, and
organizing. (Id.). Erb indicated that he had a history of previous marijuana use until
8
approximately September 2011 and currently consumed approximately six alcoholic beverages
twice a week. (Id.). Erb reported prior arrests for obstruction of governmental administration,
harassment, criminal contempt, and violation of orders of protection. (Id.).
Erb reported that he did not have difficulties cooking, cleaning, washing laundry,
driving, taking public transportation, or caring for his personal hygiene on a day-to-day basis.
(Id.). He reported that his anxiety prevented him from shopping. (Id.). According to Erb, he
sometimes socialized with acquaintances, but found it difficult to be around other people, and
generally preferred to stay home. (Id.). He reported a good relationship with his girlfriend and
his son. (Id.). His hobbies included watching television and using the computer. (Id.).
Upon examination, Caldwell noted that Erb appeared casually dressed and
well-groomed. (Id.). Caldwell opined that Erb had fluent and pressured speech with adequate
language, coherent and goal-directed thought processes, agitated affect, irritable mood, clear
sensorium, full orientation, fair to poor insight, fair to poor judgment, and average intellectual
functioning with a general fund of information that was appropriate to his experience. (Id.).
Caldwell noted that Erb’s attention and concentration were intact. (Id.). According to Caldwell,
Erb completed the serial 3’s without mistake. (Id.). Erb’s memory skills were intact. (Id.).
According to Caldwell, Erb could recall three objects immediately, but could not recall the
objects after a delay. (Id.). Further, Erb was able to repeat six digits forward and four backward.
(Id.). Caldwell reported that Erb’s demeanor during the evaluation was irritable and his manner
of relating, social skills, and overall presentation were poor. (Id.). According to Caldwell, Erb
appeared very agitated throughout the evaluation. (Id.).
According to Caldwell, Erb could follow and understand simple directions and
instructions, perform simple tasks independently, maintain attention and concentration, maintain
9
a regular schedule, and learn new tasks. (Id.). Caldwell opined that Erb’s ability to perform
complex tasks independently, make appropriate decisions, relate adequately with others, and
appropriately deal with stress were limited due to his depressive disorder, anxiety disorder, and
panic disorder. (Id.). According to Caldwell, the results of her evaluation appeared consistent
with Erb’s report to her. (Id.). Caldwell opined that Erb’s prognosis was fair to guarded with
continued psychological and psychiatric intervention. (Id.).
2.
E. Kamin, Psychology
On June 4, 2012, agency medical consultant E. Kamin (“Kamin”), MD,
completed a Psychiatric Review Technique. (Tr. 270-83). Kamin concluded that Erb’s mental
impairments did not meet or equal a listed impairment. (Tr. 270, 273, 275). According to
Kamin, Erb suffered from mild limitations in his activities of daily living and moderate
limitations in his ability to maintain social functioning and to maintain concentration, persistence
or pace. (Tr. 280). According to Kamin, Erb had suffered from one or two episodes of
deterioration. (Id.). Kamin completed a mental Residual Functional Capacity (“RFC”)
assessment. (Tr. 284-87). Kamin opined that Erb suffered from moderate limitations in his
ability to work in coordination with or proximity to others without being distracted by them, to
make simple work-related decisions, to complete a normal workday and workweek without
interruptions from psychologically-based symptoms, to interact appropriately with the general
public, to accept instructions and respond appropriately to criticism from supervisors, to get
along with coworkers or peers without distracting them or exhibiting behavioral extremes, to
respond appropriately to changes in a work setting, and to set realistic goals or make plans
independently of others. (Id.). Kamin repeated Caldwell’s opinion that Erb could follow and
understand simple directions and instructions, perform simple tasks independently, maintain
10
attention and concentration, maintain a regular schedule and learn new tasks, but was limited in
his ability to perform complex tasks independently, make appropriate decisions, relate
adequately with others, and appropriately deal with stress. (Id.).
3.
Kang Yu, MD
On January 15, 2013,3 Yu submitted an evaluation of Erb’s mental RFC.
(Tr. 307-10). Yu opined that Erb had a good4 ability to comprehend and carry out simple
instructions and to remember work procedures. (Id.). Additionally, Yu opined that Erb had a
fair5 ability to remember detailed instructions, respond appropriately to supervisors, function
independently, exercise appropriate judgment, concentrate and attend to a task over an eight-hour
period, abide by occupational rules and regulations, make simple work-related decisions,
maintain social functioning, and be aware of normal hazards. (Id.). According to Yu, Erb had
demonstrated difficulty with interpersonal interactions and had a low frustration tolerance. (Id.).
According to Yu, Erb had reported difficulty managing his emotions at work and difficulty
maintaining focus. (Id.).
Yu further opined that Erb had a poor6 ability to respond appropriately to
coworkers, complete a normal workday on a sustained basis, and tolerate customary work
pressures in a work setting, including production requirements and demands. (Id.). According to
Yu, Erb’s low frustration tolerance and difficulty controlling his emotions had resulted in
3
Yu’s opinion is dated January 15, 2012, but the cover letter submitting the evaluation indicates that it
should have been dated January 15, 2013. (Tr. 306, 310).
4
“Good” was defined to mean “[t]he ability to function in this area is limited but satisfactory.” (Id.).
5
“Fair” was defined to mean “[t]he ability to function in this area is seriously limited and will result in
periods of unsatisfactory performance at unpredictable times.” (Id.).
6
“Poor” was defined to mean “no useful ability to function in this area.” (Id.).
11
outbursts and loss of employment. (Id.). Further, Yu opined that Erb had an aversion to
pressured situations and would not respond well to production requirements and demands. (Id.).
According to Yu, Erb was likely to deteriorate under stress. (Id.). Yu opined that
Erb’s conditions were likely to produce good days and bad days and that Erb was likely to be
absent from work more than four days per month. (Id.). Yu indicated that he had not treated Erb
since October 26, 2012. (Id.). He also opined that Erb was totally disabled and unable to engage
in any competitive employment. (Id.).
On May 3, 2013, Yu opined that Erb’s impairments would continue even if he
were to abstain from consuming alcohol or narcotic drugs. (Tr. 312). Additionally, on March
28, 2014, Yu opined that Erb continued to be totally disabled from any form of competitive
employment and that the limitations contained in his January 2012 evaluation continued to exist.
(Tr. 9).
III.
Non-Medical Evidence
A.
Application for Benefits
In his application for benefits, Erb reported that he had been born in 1978.
(Tr. 166). According to Erb, he had previously been employed as a cashier, cable lineman, cook
at a fast food restaurant, a pallet factory worker, a truck washer, a prep cook and a dishwasher.
(Tr. 59-66).
Erb reported that he lived in an apartment with his girlfriend. (Tr. 44-56). He
was able to care for his own personal hygiene, but had difficulty sleeping and needed assistance
to remember to take his medication. (Id.). Erb was able to prepare his own meals and could
perform household chores without assistance, including cleaning, laundry and yard work. (Id.).
12
He was able to walk and drive a car for transportation and left home daily. (Id.). Erb went
shopping once a week and was able to handle his own finances. (Id.).
According to Erb, he enjoyed watching television and “RC trucks” and spending
time with others several times each week. (Id.). Erb reported that he sometimes got nervous
around others, but visited his mother, sisters and aunt a few times each week. (Id.). He reported
difficulty maintaining attention, completing tasks, and following written or spoken instructions.
(Id.). He also reported difficulty getting along with people in authority and that he had lost
employment because he had not followed instructions. (Id.). Erb reported that he was severely
affected by stress or changes in schedule and had difficulty with his memory. (Id.).
Erb reported that he had experienced panic attacks since he was a child and that
they had increased in frequency. (Id.). According to Erb, his attacks occurred daily, did not
have particular triggers, and were indicated by rapid heartbeat and anxious feelings. (Id.). The
attacks typically lasted one to two hours, during which Erb was able to complete tasks including
shopping or driving, but with difficulty. (Id.).
B.
Administrative Hearing Testimony
During the administrative hearing, Erb testified that he had completed the
eleventh grade in special education classes. (Tr. 70, 74). Erb testified that he had previously
worked at a truck wash, but had lost his employment after failing a urinalysis test. (Tr. 71). Erb
testified that he lives with his girlfriend, who drove him to the hearing. (Tr. 73). Erb has a
driver’s license and is able to drive by himself, although he has difficulty with directions. (Id.).
Erb testified that he is able to care for his own personal hygiene and complete household chores.
(Tr. 73-74). According to Erb, when his mood permits, he generally wakes at about 9:00 a.m.,
watches the news, and then performs household chores. (Tr. 74).
13
Erb testified that he suffers from bipolar disorder and other mental impairments
that prevent him from working. (Tr. 71-72). Erb’s mental impairments affect him daily,
although some days are worse than others. (Tr. 74-75). Erb estimated that he has bad days
approximately “once or twice a week,” during which he does not leave the house or get dressed
and is easily agitated. (Id.). On those days, his mood may fluctuate from happy to miserable
within minutes. (Tr. 75).
Erb testified that he often feels overwhelmed by everyday situations, particularly
his inability to see his son. (Tr. 76). He also experiences difficulty with his memory and
attention. (Tr. 76-77). According to Erb, he has difficulty finishing tasks and is easily frustrated.
(Tr. 77). Additionally, Erb reported difficulty socializing with others. (Tr. 77-78). Erb does not
like to go shopping because it requires him to be around other people. (Tr. 79).
According to Erb, he sees his therapist once a week and treats with Yu once every
three months. (Id.). Erb testified that his current medication is beneficial and produces no side
effects. (Tr. 72-73). Before the medication, Erb had difficulty controlling his anger.
(Tr. 75-76). Erb reported that he takes Clonazepam when he feels the symptoms of a “hyper”
episode coming on. (Tr. 78). Erb experiences these episodes, which last about ten minutes,
three to four times each week. (Tr. 79).
Erb’s girlfriend, Maria Bonacci (“Bonacci”), also testified during the hearing.
(Tr. 80). She testified that she had been living with Erb for approximately two years. (Id.).
Bonacci testified that Erb needs assistance to complete tasks, often requiring step-by-step
instructions. (Tr. 81). Additionally, Erb is easily frustrated, which impedes his ability to
complete tasks. (Tr. 81-82). According to Bonacci, Erb has difficulty maintaining attention,
although he is able to complete household chores upon request. (Tr. 82). Approximately four
14
days each week, Erb experiences a low mood. (Id.). On those days, he does not get dressed or
leave the house. (Id.). Bonacci reported that Erb has difficulties with his memory and
decision-making and does not get along with many people. (Tr. 82-83).
Vocational expert Abbe May (“May”), M.Ed., also testified during the hearing.
(Tr. 83-87, 141). The ALJ noted that Erb did not appear to have performed his previous jobs at a
level sufficient to qualify as past relevant work. (Tr. 84). The ALJ asked May whether any jobs
would exist for a person who was the same age as Erb, with the same education and vocational
profile, and who was able to perform the full range of work at all exertional levels, but who was
limited to routine, unskilled, non-quota work, with no more than occasional interpersonal contact
when working as part of a team, no public contact as part of the job duties, but could tolerate
occasional public contact incidental to job duties. (Id.). May opined that such an individual
could perform the jobs of groundskeeper, janitorial worker and auto detailer. (Tr. 85). The ALJ
asked whether those positions would be available for the same individual if the individual were
absent from work three times per month. (Id.). May testified that such an individual would not
be able to maintain competitive employment. (Tr. 85-86).
Erb’s attorney asked May whether an individual would be able to perform any of
the previously identified positions if he had no useful ability to relate appropriately with
coworkers, to complete a normal workday on a sustained basis, or to tolerate customary work
pressures in a work setting. (Tr. 86). May testified that such an individual would not be able to
perform the identified positions. (Id.).
C.
Third-Party Statements
Bonacci also submitted a statement dated July 9, 2012. (Tr. 199-201). Bonacci
indicated that Erb had difficulties with his memory, decision-making, attention span, and ability
15
to interact with others. (Id.). According to Bonacci, Erb also suffered from manic depressive
cycles and periods of high anxiety. (Id.). Further, Bonacci stated that Erb was easily frustrated
and had difficulty managing stress. (Id.).
Erb’s aunt Thelma McGough (“McGough”) submitted a statement dated July 24,
2012. (Tr. 203-05). McGough indicated that Erb had experienced difficulties since childhood.
(Id.). According to McGough, Erb had difficulty tolerating stress, maintaining attention when
distracted, and being around other people without experiencing agitation. (Id.). Additionally she
reported that Erb suffered from an inability to control his anger. (Id.).
Pam Shumway (“Shumway”), Erb’s mother, also submitted a statement dated July
30, 2012. (Tr. 206-08). Shumway indicated that Erb had a short temper and was easily agitated,
which limited his ability to respond to others. (Id.). According to Shumway, Erb was easily
distracted, needed instructions explained to him in detail, and had difficulty making decisions,
handling stress, and maintaining attention. (Id.).
DISCUSSION
I.
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
16
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled if he or she is 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). When assessing
17
whether a claimant is disabled, the ALJ must employ a five-step sequential analysis. See Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:
(1)
whether the claimant is currently engaged in substantial
gainful activity;
(2)
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3)
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
(4)
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and
(5)
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
A.
The ALJ’s Decision
In his decision, the ALJ followed the required five-step analysis for evaluating
disability claims. (Tr. 16-27). Under step one of the process, the ALJ found that Erb had not
engaged in substantial gainful activity since March 22, 2012, the application date. (Tr. 21). At
step two, the ALJ concluded that Erb has the severe impairments of bipolar disorder, depression,
anxiety, and substance addiction disorder. (Id.). At step three, the ALJ determined that Erb does
not have an impairment (or combination of impairments) that meets or medically equals one of
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the listed impairments. (Tr. 21-23). With respect to Erb’s mental impairments, the ALJ found
that Erb suffered from mild restrictions in activities of daily living and moderate difficulties in
maintaining concentration, persistence and pace, and social functioning. (Id.). The ALJ
concluded that Erb has the RFC to perform the full range of work at all exertional levels, but that
he was limited to routine, unskilled work that involved only occasional interpersonal contact in
the workplace and did not involve extensive contact with the public or working as part of a team.
(Tr. 23). At step four, the ALJ determined that Erb had no past relevant work. (Tr. 26). Finally,
at step five, the ALJ determined that other jobs existed in the national economy that Erb could
perform, including the positions of groundskeeper, janitor and automotive detailer. (Tr. 27).
Accordingly, the ALJ found that Erb was not disabled. (Id.).
B.
Erb’s Contentions
Erb contends that the ALJ’s mental RFC determination is not supported by
substantial evidence and is the product of legal error. (Docket # 9). First, he challenges the
ALJ’s RFC assessment on the grounds that the ALJ failed to give appropriate weight to the
opinion of Erb’s treating physician and that his RFC analysis was not otherwise supported by
substantial evidence. (Id. at 10-19). Next, Erb maintains that the ALJ failed to assess properly
his credibility. (Id. at 19-22). Finally, he contends that the ALJ’s step five determination is not
based upon substantial evidence because the hypothetical posed to the vocational expert was
based upon a flawed RFC analysis. (Id. at 23-25).
II.
Analysis
I turn first to Erb’s contention that the ALJ’s RFC assessment was flawed. An
individual’s RFC is his “maximum remaining ability to do sustained work activities in an
19
ordinary work setting on a regular and continuing basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d
Cir.1999) (quoting SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996)). When making an RFC
assessment, the ALJ should consider “a claimant’s physical abilities, mental abilities,
symptomology, including pain and other limitations which could interfere with work activities
on a regular and continuing basis.” Pardee v. Astrue, 631 F. Supp. 2d 200, 221 (N.D.N.Y. 2009)
(citing 20 C.F.R. § 404.1545(a)). “To determine RFC, the ALJ must consider all the relevant
evidence, including medical opinions and facts, physical and mental abilities, non-severe
impairments, and [p]laintiff’s subjective evidence of symptoms.” Stanton v. Astrue, 2009 WL
1940539, *9 (N.D.N.Y. 2009) (citing 20 C.F.R. §§ 404.1545(b)-(e)), aff’d, 380 F. App’x 231 (2d
Cir. 2010).
As an initial matter, the opinion provided by Yu that Erb was “totally disabled”
and not capable of engaging “in any competitive employment” reflects a conclusion that is
expressly reserved for the Commissioner. As such, and as noted by the ALJ, he was not
obligated to accord significant weight to this portion of Yu’s assessment. See Osbelt v. Colvin,
2015 WL 344541, *3 (W.D.N.Y. 2015) (physician’s letter “which concluded that ‘[claimant] is
unable to work in any significant capacity given ongoing emotional and physical limitations’ . . .
[did] not specify the nature of such limitations, or describe how they would render plaintiff
incapable of work” and thus amounted to a “conclusory opinion concerning the ultimate issue of
disability, [a] matter [that] is unquestionably reserved for the Commissioner”) (internal quotation
omitted); Wilferth v. Colvin, 2014 WL 4924117, *3 (W.D.N.Y. 2014) (“[the doctor’s] opinion
. . . does not specify any particular limitation on plaintiff’s capacity: it is no more than a
conclusory opinion on the ultimate issue of disability, which is unquestionably a matter reserved
to the Commissioner”) (internal quotation omitted); Thompson v. Colvin, 2014 WL 7140575, *9
20
(D. Vt. 2014) (doctor’s opinion that claimant was currently unable to work was not entitled to
weight; “the opinion[] [is] conclusory and do[es] not list any practical functional consequences
of [claimant’s] mental impairments, stating merely that ‘complications with anxiety, PTSD[,]
and agoraphobia’ have caused her to be unable to work”); Emery v. Astrue, 2012 WL 4892635,
*6 (D. Vt. 2012) (“the ALJ was not obligated to afford significant weight to [the doctor’s]
conclusory opinion that [claimant’s] impairments limited ‘her ability to hold a full-time job’”).
Erb argues that the ALJ improperly discounted the opinion provided by Yu on
January 15, 2013. (Docket # 9-1 at 10-17). “An ALJ who refuses to accord controlling weight
to the medical opinion of a treating physician must consider various ‘factors’ to determine how
much weight to give to the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). The
ALJ must explicitly consider:
(1)
the frequency of examination and length, nature, and extent
of the treatment relationship,
(2)
the evidence in support of the physician’s opinion,
(3)
the consistency of the opinion with the record as a whole,
(4)
whether the opinion is from a specialist, and
(5)
whatever other factors tend to support or contradict the
opinion.
Gunter v. Comm’r of Soc. Sec., 361 F. App’x 197, 199 (2d Cir. 2010). The regulations also
direct that the ALJ should “give good reasons in [his] notice of determination or decision for the
weight [he] give[s] [claimant’s] treating source’s opinion.” Halloran v. Barnhart, 362 F.3d at 32
(quoting 20 C.F.R. § 404.1527(c)(2)). “Even if the above-listed factors have not established that
the treating physician’s opinion should be given controlling weight, it is still entitled to
deference, and should not be disregarded.” Salisbury v. Astrue, 2008 WL 5110992, *4
21
(W.D.N.Y. 2008). The same factors should be used to determine the weight to give to a
consultative physician’s opinion. Tomasello v. Astrue, 2011 WL 2516505, *3 (W.D.N.Y. 2011).
“However, if the treating physician’s relationship to the claimant is more favorable in terms of
the length, nature and extent of the relationship, then the treating physician’s opinion will be
given more weight than that of the consultative examining physician.” See id.
The ALJ stated that he gave “some weight” to portions of Yu’s opinion and found
remaining portions to be unsupported or contradicted by the record. In doing so, he did adopt or
account for many of the limitations assessed by Yu. For instance, the ALJ limited Erb to routine,
unskilled work – consistent with Yu’s opinion that Erb was able to comprehend and carry out
simple instructions, but would have difficulty with detailed instructions – and required that Erb’s
contact with coworkers and the public be limited – consistent with Yu’s opinion that Erb would
have difficulty responding to supervision and was unable to respond appropriately to coworkers.
(Tr. 14, 307-08). Further, the hypothetical that the ALJ posed to the vocational expert was
limited to jobs that did not require quota work – consistent with Yu’s opinion that Erb would not
be able to handle production or demand requirements. (Tr. 84-85, 309).
Although the ALJ clearly adopted some of Yu’s limitations, Erb maintains that
the ALJ’s RFC assessment is flawed because he improperly rejected Yu’s opinions that Erb had
no useful ability to respond appropriately to coworkers, complete a normal workday on a
sustained basis, or tolerate customary work pressures in a work setting. (Docket # 9-1 at 10).
Additionally, Erb maintains that the ALJ improperly rejected Yu’s conclusion that Erb was likely
to be absent from work more than four days per month. (Id. at 11). I conclude that the ALJ
failed to provide “good reasons” for his decision to assign limited weight to these portions of
Yu’s opinion. In his decision, the ALJ recognized that Yu was Erb’s treating physician, but
22
accorded these opinions little weight because he found that they were inconsistent with Erb’s
“hearing presentation, level of activities and the record as a whole.” (Tr. 26).
Having reviewed the decision, the record, and Yu’s opinion, I conclude that the
three grounds provided by the ALJ for rejecting portions of Yu’s opinion do not constitute “good
reasons.” First, I agree with Erb that the ALJ’s observations of a claimant during a hearing are
entitled to limited weight and do not provide a basis for rejecting portions of Yu’s opinion. The
ALJ described Erb’s hearing demeanor as “responsive, courteous and articulate.” (Tr. 24). He
then determined that Yu’s opinion was inconsistent with Erb’s hearing demeanor, but failed to
explain the nature of the inconsistency. Indeed, a review of Yu’s treatment notes demonstrates
that Erb generally presented as “cooperative and friendly” and that his speech was coherent and
relevant during his appointments with Yu. (Tr. 289, 293). Despite his friendly demeanor, Yu
opined that Erb suffered from serious mental health issues and assessed significant work-related
limitations, opining that Erb was unable to engage in competitive employment. (Tr. 307-10).
That Yu would assess significant limitations despite describing a cooperative and friendly
demeanor suggests the assessed limitations are not inconsistent with the demeanor observed by
the ALJ during the hearing. In any event, without an explanation from the ALJ identifying the
inconsistency, I am unable to evaluate whether Erb’s hearing demeanor provided a sufficient
basis for rejecting some of Yu’s conclusions.
Further, although a claimant’s “pattern of daily living” is an “important indicator
of the intensity and persistence of [the claimant’s] symptoms,” see 20 C.F.R. § 416.929(c)(3), the
ALJ failed to explain how Erb’s activities were inconsistent with the opinions provided by Yu
that were rejected by the ALJ. The ALJ noted that Erb was able to care for his personal hygiene,
prepare his own meals, perform household chores and yard work, take public transportation, and
23
drive. (Tr. 24). According to the ALJ, Erb’s ability to drive demonstrated an ability to sustain
concentration and attention. (Id.). This observation is also consistent with Yu’s opinion that Erb
was able to carry out simple tasks and procedures. (Tr. 307). In my estimation, the remaining
activities identified by the ALJ are not necessarily inconsistent with Yu’s opinions that Erb
would have difficulty responding appropriately to coworkers, completing a normal workday on a
sustained basis, tolerating customary work pressures, or maintaining adequate attendance. Thus,
without further explanation from the ALJ, I fail to discern how Erb’s activities justify rejection
of Yu’s opinions. See Miller v. Comm’r of Soc. Servs., 2015 WL 337488, *22 (S.D.N.Y. 2015)
(“[i]n giving ‘little weight’ to [treating physician’s] opinion, the ALJ also reasoned that it was
‘inconsistent with the extensive activities of daily living that the claimant was able to perform’[;]
. . . [s]uch a conclusory statement, which does not identify which activities are being referenced,
is insufficient to meet the ALJ’s obligations to ‘comprehensively set forth [the] reasons for the
weight assigned’ to the opinion”) (quoting Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)).
Finally, the ALJ’s statement that the rejected opinions were “inconsistent with the
record as a whole” is too conclusory to constitute a “good reason” to reject the treating
psychiatrist’s opinions. The ALJ does not identify anything in the record that is inconsistent
with Yu’s opinions, and indeed the record contains evidence that is consistent with Yu’s concern
about Erb’s ability to sustain employment. For instance, Erb’s work history appears to suggest
that, despite having been hired for several positions, Erb has never been able to maintain a
position for an extended length of time. (Tr. 59, 158-59). Without identifying the alleged
inconsistencies in the record, the ALJ has failed to provide any basis for rejecting Yu’s opinions.
See Marchetti v. Colvin, 2014 WL 7359158, *13 (E.D.N.Y. 2014) (“[u]nder the treating
physician rule, an ALJ may not reject a treating physician’s opinion based solely on such
24
conclusory assertions of inconsistency with the medical record”) (collecting cases); Ashley v.
Comm’r of Soc. Sec., 2014 WL 7409594, *2 (N.D.N.Y. 2014) (“this . . . conclusory statement
about the treatment records fails to fulfill the heightened duty of explanation”); Crossman v.
Astrue, 783 F. Supp. 2d 300, 308 (D. Conn. 2010) (ALJ’s statement that treating physician’s
opinion was “inconsistent with the evidence and record as a whole,” was “simply not the
‘overwhelmingly compelling type of critique that would permit the Commissioner to overcome
an otherwise valid medical opinion’”) (quoting Velazquez v. Barnhart, 2004 WL 367614 at *10
(D. Conn. 2004)). Accordingly, I conclude that the ALJ failed to provide “good reasons” for
rejecting Yu’s opinions and remand is warranted. See Halloran, 362 F.3d at 33 (“[w]e do not
hesitate to remand when the Commissioner has not provided ‘good reasons’ for the weight given
to a treating physician[’]s opinion and we will continue remanding when we encounter opinions
from ALJ’s that do not comprehensively set forth reasons for the weight assigned to a treating
physician’s opinion”).
On remand, the ALJ should state his findings and provide good reasons for
rejecting Yu’s opinions, if he still does, considering the length, nature, and extent of the
treatment relationship, the frequency of examination, the degree to which Yu’s opinion was
consistent with the record as a whole, whether Yu was a specialist in an area of medicine that
related to one of Erb’s impairments, and whether there were any other factors that “support or
contradict” Yu’s opinion. See 20 C.F.R. §§ 404.1527(c)(2)-(6), 416. 927(c)(2)-(6).
Additionally, it does not appear as though all of the treatment records from Elmira Psychiatric
Center were included in the record. For instance, although the records indicate that Erb attended
therapy sessions with Underwood (Tr. 300), the treatment records reflecting those sessions are
not in the record. Similarly, the records suggest that Erb met with Yu on August 1, 2011, but
25
that treatment note is not in the record. On remand, the ALJ is directed to re-contact the Elmira
Psychiatric Center and request that they provide all records relating to Erb’s treatment.
Erb also challenges the ALJ’s RFC assessment on the grounds that he improperly
relied on the opinions provided by Caldwell, the one-time examining psychologist, and Kamin,
the non-examining psychologist, and formulated an RFC without explaining how it was
supported by the medical evidence. (Docket ## 9-1 at 17-19; 12 at 2-3). Similarly, Erb
challenges the ALJ’s credibility analysis on the grounds that he failed to provide good reasons
for discounting Erb’s testimony and the statements provided by Erb’s girlfriend and family. (Id.
at 17-23). Finally, he challenges the ALJ’s step five assessment because it was based upon an
allegedly flawed RFC. (Id. at 23-25). In light of my determination that the ALJ erred in
evaluating the opinion of Erb’s treating physician, thus warranting remand, I decline to evaluate
whether the ALJ erred in assessing plaintiff’s RFC or credibility. See Norman v. Astrue, 912
F. Supp. 2d 33, 85 n.79 (S.D.N.Y. 2012) (“[b]ecause I find that remand is proper on the basis of
the ALJ’s failure to properly develop the record and to properly apply the treating physician rule,
I do not reach plaintiff’s arguments with respect to (1) the ALJ’s determination of his RFC at
step four and (2) whether the ALJ carried his burden at step five of the analysis[;] [t]he
aforementioned legal errors cause the remaining portions of the ALJ’s analysis to be inherently
flawed”); Balodis v. Leavitt, 704 F. Supp. 2d 255, 268 n.14 (E.D.N.Y. 2010) (“[b]ecause the
[c]ourt concludes that the ALJ erred in applying the treating physician rule, and that a remand is
appropriate, the [c]ourt need not decide at this time whether the ALJ erred in assessing plaintiff’s
credibility”).
Although I do not reach Erb’s challenges to the ALJ’s step-five assessment, I do
note that the hypothetical posed to the ALJ does not appear to correspond precisely to the RFC
26
assessed by the ALJ. During the hearing, the ALJ asked the vocational expert to identify
positions for an individual who “could tolerate no more than occasional interpersonal contact if
the individual would be working as part of any team.” (Tr. 84). Yet, in the RFC assessment the
ALJ indicated that Erb should not work as part of a team. (Tr. 23). Given the hypothetical posed
to the vocational expert, it is unclear whether any of the identified positions would require
teamwork. This should be clarified on remand.
CONCLUSION
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 11) is DENIED, and Erb’s motion for judgment on the pleadings (Docket
# 9) is GRANTED to the extent that the Commissioner’s decision is reversed, and this case is
remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
September 15, 2015
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