DeJohn v. Colvin
Filing
12
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Court finds that the ALJ's misstatement of Dr. Finnity's opinion warrants reversal and remand; granting 9 Commissioner's Motion to Remand for further administrative proceedings consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/6/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DIANE DEJOHN,
Plaintiff,
No. 6:14-cv-06414(MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVN, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Represented by counsel, Diane Dejohn (“Plaintiff”) brings this
action pursuant to Titles II and XVI of the Social Security Act
(“the Act”), challenging the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income
(“SSI”).
The
Court
has
jurisdiction
over
this
matter
pursuant to 42 U.S.C. § 405(g).
II.
Background
Plaintiff filed an application for DIB on January 23, 2012,
and an application for SSI on February 14, 2012. T.173-85.1 In
both, Plaintiff alleged disability due to depression, anxiety, and
trigeminal neuralgia beginning December 31, 2006. T.173-85; 242.
After the applications were denied on June 21, 2012, Plaintiff
requested a hearing, which was held on December 17, 2013, before
1
Numbers
preceded
by
“T.”
refer
to
pages from the
administrative transcript, submitted by Defendant as a separately
bound exhibit.
administrative
law
judge
John
Costello
(“the
ALJ”).
T.26-55.
Plaintiff testified, as did impartial vocational expert Peter A.
Manzi (“the VE”). By decision dated January 29, 2014, the ALJ found
that Plaintiff was not disabled. T.10-20. The ALJ’s decision became
the final decision of the Commissioner when the Appeals Council
denied Plaintiff’s request for review on June 30, 2014. T.1-4. This
action followed.
Plaintiff has moved for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rule of Civil Procedure, seeking remand
for further administrative proceedings, or reversal for immediate
calculation and payment of benefits. The Commissioner has crossmoved for judgment on the pleadings, acknowledging that the ALJ
made
an
error
warranting
remand
for
further
administrative
proceedings. The Court adopts and incorporates by reference herein
the undisputed and comprehensive factual recitations contained in
the parties’ briefs. The record evidence will be discussed in
further detail as necessary to the resolution of the parties’
contentions.
For the reasons discussed below, the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings consistent with this opinion.
III. Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Social Security Act (“the
Act”), the district court is limited to determining whether the
-2-
Commissioner’s
findings
were
supported
by
substantial
record
evidence and whether the Commissioner employed the proper legal
standards. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.
2003). The district court must accept the Commissioner’s findings
of fact, provided that such findings are supported by “substantial
evidence” in the record. See 42 U.S.C. § 405(g) (the Commissioner’s
findings “as to any fact, if supported by substantial evidence,
shall be conclusive”). “The deferential standard of review for
substantial
evidence
conclusions of law.”
does
not
apply
to
the
Commissioner’s
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir.
2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.
1984)). “Failure to apply the correct legal standards is grounds
for reversal.” Townley, 748 F.2d at 112.
IV.
The ALJ’s Decision
The ALJ applied the five-step sequential evaluation process
described at 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The ALJ
found that Plaintiff last met the insured status requirements of
the Act
on
June
30,
2012,
and
that
she
had
not
engaged
in
substantial gainful activity during the relevant period. T.12, 20.
At step two, the ALJ determined that Plaintiff’s depression,
anxiety, and trigeminal neuralgia constituted “severe” impairments.
T.12. At step three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
See T.13-14.
-3-
The
ALJ
then
assessed
Plaintiff
as
having
the
residual
functional capacity (“RFC”) to perform a full range of work at all
exertional levels, except that due to her mental impairments, she
is limited to performing simple work tasks in a environment where
she primarily would work alone, with only occasional supervision.
T.14-18. The ALJ determined that Plaintiff was unable to perform
her past relevant work as a property manager. T.18.
At step five, the ALJ relied on the testimony of the VE that
an individual with Plaintiff’s RFC and vocational profile would be
able to perform the requirements of light, unskilled jobs such as
a housekeeper (DOT 323.687-014) and a laundry sorter (DOT 361.687014). Noting that a significant number of such jobs exist in the
national
economy,
the
ALJ
concluded
that
a
finding
of
“not
disabled” was appropriate under the framework of Section 204.00 of
the Medical-Vocational Guidelines. T.19-20
V.
Discussion
A.
The ALJ Misstated a
Psychologist’s Opinion
Portion
of
the
Consultative
Plaintiff contends that the ALJ materially misstated a portion
of the opinion issued by the consultative psychologist. Because the
ALJ relied on this misstatement in formulating his RFC, Plaintiff
argues,
the
RFC
is
legally
erroneous
and
not
supported
by
substantial evidence.
Consultative
psychologist
Dr.
Kavitha
Finnity,
examined
Plaintiff on June 7, 2012, at the Commissioner’s request. The
-4-
diagnoses given were major depressive disorder, post-traumatic
stress disorder (“PTSD”) (although there is no precipitating event
for PTSD described in Dr. Finnity’s opinion), and panic disorder
without agoraphobia. Dr. Finnity opined, in relevant part, that
Plaintiff “is unable to maintain a regular schedule.” T.358.
However, the ALJ stated that Dr. Finnity found Plaintiff “was
capable of . . . maintaining a regular schedule[.]” T.17. The ALJ
assigned Dr. Finnity’s opinion “some weight,” and specifically
accepted her finding regarding Plaintiff’s ability to maintain a
regular
schedule.
misquoting
this
T.17.
As
the
Commissioner
aspect
of
Dr.
Finnity’s
acknowledges,
opinion,
and
by
then
incorporating it into his assessment of Plaintiff’s RFC, the ALJ
committed reversible error.
B.
Remedy
Te fourth sentence of Section 405(g) of the Act provides that
a “[c]ourt shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner. . ., with or without
remanding the case for a rehearing.” 42 U.S.C. § 405(g). Courts
have held that a remand pursuant to the fourth sentence of Section
405(g) is appropriate in cases where the Commissioner’s decision is
the product of legal error. See, e.g., Rosa v. Callahan, 168 F.3d
72, 82-83 (2d Cir. 1999) (“Where . . . the ALJ has applied an
improper legal standard, we have, on numerous occasions, remanded
-5-
to the [Commissioner] for further development of the evidence.”)
(internal quotation marks omitted).
Plaintiff urges that Dr. Finnity’s opinion that she is “unable
to maintain a regular schedule” compels a finding of disability.
While performing typical work activities in an ordinary work
setting on a “regular and continuing basis[,]” SSR 96–8p, 1996 WL
374184, at *2 (S.S.A. 1996), is critical aspect of a claimant’s
RFC, an ALJ’s error in weighing a physician’s opinion that a
claimant would be unable to adhere to a regular schedule, standing
alone,
generally
has
not
been
held
to
warrant
a
finding
of
disability. See, e.g., Smith v. Astrue, No. 09–CV–470 (TJM/VEB),
2011 WL 6739509, at *7 (N.D.N.Y. Nov. 4, 2011) (remanding for
further proceedings where ALJ did not properly weigh consultative
examiner’s opinion that claimant was “not likely to maintain a
regular schedule,” “make appropriate decisions,” or “appropriately
deal with stress”). As the Commissioner notes, Dr. Finnity did not
opine
that
Plaintiff
was
unable
to
perform
any
work-related
activities due to her mental impairments; for instance, she found
that Plaintiff could learn new tasks, perform complex tasks, make
appropriate decisions, and maintain attention and concentration.
T.358. Remand is necessary for the ALJ to re-weigh Dr. Finnity’s
opinion and re-evaluate Plaintiff ability to maintain a regular
schedule in light of all of the evidence in the record. See Veino
v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (it was within
province
of
ALJ
to
credit
treating
-6-
physician’s
opinion
that
medication prescribed for claimant had stabilized his condition,
while not crediting treating physician’s opinion that claimant
suffered from post-traumatic stress disorder and anxiety disorder
that would interfere with his ability to work, where record plainly
contained
conflicting
psychological
evaluations
of
claimant’s
present condition; ALJ is entitled to resolve genuine conflicts in
the
evidence).
Furthermore,
because
the
ALJ
must
re-assess
Plaintiff’s RFC, it may be necessary for the ALJ to conduct a new
step five analysis and obtain additional VE testimony.
V.
Conclusion
For the foregoing reasons, Defendant’s motion for judgment on
the pleadings seeking remand on the basis of the ALJ’s misstatement
of
Dr.
Finnity’s
opinion
is
granted.
Plaintiff’s
motion
for
judgment on the pleadings (Dkt #8) is also granted to the extent
that the Court finds that the ALJ’s misstatement of Dr. Finnity’s
opinion
warrants
reversal
and
remand.
Accordingly,
the
Commissioner’s decision is reversed, and the matter is remanded for
further administrative proceedings consistent with this opinion.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
August 6, 2015
Rochester, New York
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?