Holmes v. Commissioner of Social Security

Filing 20

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 15 Commissioner's Motion for Judgment on the Pleadings and remanding this matter for further administrative proceedings consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/25/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY ROBERT HOLMES,
14-cv-06516
DECISION AND
ORDER

Plaintiff,

-vsCAROLYN W. COLVN, Acting
Commissioner of Social Security,
Defendant.
I.

Introduction
Plaintiff Timothy Holmes (“plaintiff”) brings this

action pursuant to Titles II and XVI of the Social
Security Act (the “SSA”), challenging the final decision
of

the

Commissioner

of

Social

Security

(“the

Commissioner”) denying his applications for disability
insurance

benefits

(“DIB”)

and

supplemental

security

income (“SSI”).
Presently before the Court is the Commissioner’s
motion for an order reversing her final decision and
remanding the case for rehearing pursuant to the fourth
sentence of 42 U.S.C. § 405(g).
II. Background

On March 14, 2011, plaintiff filed applications for
DIB and SSI alleging disability due to back and knee
problems, post-traumatic stress disorder (“PTSD”) and
right

shoulder

injury

Administrative
Following

an

as

Transcript
initial

of

(“T.”)

denial

of

September
112,
his

1,

2009.

208-220,

279.

applications,

a

hearing was held, at plaintiff’s request, on July 30,
2012 and January 22, 2013, before administrative law
judge

(“ALJ”)

Richard

Guida.

T.

78-111.

Plaintiff

testified, as did impartial vocational expert William
Reed (the “VE”).

By decision dated February 1, 2013, the

ALJ found that plaintiff was not disabled. T. 35-51.

The

ALJ’s

the

decision

became

the

final

decision

of

Commissioner when the Appeals Council denied plaintiff’s
request for review on

May 14, 2014.

T. 4-9.

This

action ensued.
The Commissioner, acknowledging that correct legal
standards have not been applied in this case, has moved
for an order pursuant to 42 U.S.C. § 405(g) for remand.
The Court adopts and incorporates by reference herein the
undisputed factual recitations contained in the moving

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papers.

The record evidence will be discussed in further

detail as needed.
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
42 U.S.C. § 405(g) grants jurisdiction to district

courts to hear claims based on the denial of Social
Security benefits.

Section 405(g) provides that the

District Court "shall have the power to enter, upon the
pleadings

and

transcript

of

the

record,

a

judgment

affirming, modifying, or reversing the decision of the
Commissioner

of

Social

Security,

with

or

without

remanding the cause for a rehearing." 42 U.S.C. § 405(g).
This section directs that when considering such a claim,
the Court must accept the findings of fact made by the
Commissioner, provided that such findings are supported
by substantial evidence in the record.
When determining whether the Commissioner's findings
are supported by substantial evidence, the Court's task

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is

"‘to

examine

contradictory

the

evidence

entire
and

record,

evidence

including
from

which

conflicting inferences can be drawn.'" Brown v. Apfel,
174

F.3d

59,

62

(2d

Cir.1999),

quoting

Mongeur

v.

Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (per curiam).
Section 405(g) limits the scope of the Court's review to
two inquiries: (1) whether the Commissioner's findings
were supported by substantial evidence in the record as
a whole and (2) whether the Commissioner's conclusions
are

based

upon

Green–Younger

v.

an

erroneous

Barnhart,

legal

335

F.3d

standard.
99,

See

105–106

(2d

applying

the

Cir.2003).
IV. The ALJ’s Decision
Considering
five-step

the

analysis

case

de

contained

novo
in

and

the

Social

Security

Administration's regulations (see 20 C.F.R. §§ 404.1520,
416.920),
findings:

the
(1)

ALJ

made,

plaintiff

inter
met

alia,
the

the

following

insured

status

requirements of the SSA through December 31, 2014; (2)
plaintiff had not engaged in substantial gainful activity
since

September

1,

2009;

(3)

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his

degenerative

disc

disease, obesity, major depressive disorder, and PTSD
were severe impairments; (3) his impairments, singly or
combined, did not meet or medically equal the severity of
any impairments listed in 20 CFR Part 404, Subpart P,
Appendix

1

(20

CFR

404.1520[d],

404.1525,

404.1526,

416.920[d], 416.925, and 416.926); and (4) plaintiff has
the

residual

functional

(“RFC”)

capacity

to

perform

unskilled light work with the following limitations:
occasionally climb ramps and stairs, but never climb
ladders, ropes or scaffolds; occasionally balance, stoop,
kneel, crouch, and crawl; perform only simple, routine,
repetitive
decisions

tasks
with

involving

few,

if

only

any,

simple

workplace

work-related
changes;

and

occasionally interact with supervisors, coworkers and the
public. T.
younger
relevant

The ALJ further found that plaintiff, a

individual,
work,

education,

work

but

is

unable

considering

experience,

to

perform

his

and

age,

RFC,

any

high
there

past

school
are

a

significant number of jobs in the national economy that
plaintiff could perform. T. 43-50.
V.

Discussion

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The

Commissioner

contends

that

in

determining

plaintiff’s RFC, the ALJ: (1) primarily relied on the
opinion

evidence

impairments
injury;

related

(2)

to

an

erroneously

plaintiff’s
improperly

assessing

earlier

failed

non-exertional
accorded

plaintiff’s

little

work-related

to

include

impairments;
weight

physical

to

the

back

any

of

and

(3)

opinion

of

plaintiff’s treating mental health care provider, Dr.
Landsman.

Defendant’s memorandum of law, p. 4-7.

handwritten

response,

plaintiff

does

not

In a

raise

any

opposition to the request for reversal and maintains that
he continues to be disabled.
In his decision, the ALJ found that the severity of
plaintiff’s mental impairments did not meet or medically
equal the criteria of Listings 12.04 and 12.06.

He

concluded

in

that

plaintiff

had

a

mild

restriction

activities of daily living, citing courses that plaintiff
has taken in school and activities in which he has
participated “over the past several years.” T. 41.
ALJ

assessed

“moderate

difficulties”

in

The

social

functioning, relying on plaintiff’s reports of spending

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time with family and “the few friends he does have” and
interaction with plaintiff during his hearing. T. 42.
The ALJ noted that objective findings in the medical
records support a finding of significant problems related
to plaintiff’s concentration, persistence or pace, but
found no greater than moderate limitations, stating that
plaintiff has “average if not above average intelligence
in many regards” and has “consistently been involved in
school.” T. 42.

The ALJ further concluded that plaintiff

had experienced no episodes of decompensation. T. 42.
A.

The ALJ erred by failing to develop the record or
properly apply the treating physician rule.
In his decision, the ALJ discounted the assessment of

plaintiff’s treating psychologist, Dr. Brad Landsman, who
opined in an August 12, 2011 psychological evaluation
that,
severe

among

other

mental

things,

disorder,

plaintiff

PTSD

with

suffered

from

narcissistic

a

and

paranoid features, and had a GAF, global assessment of
functioning, score of 45.1

The ALJ noted that a GAF score

1

The GAF score is a scale ranging from 0 for lowest functioning through
100 for highest functioning promulgated by the American Psychiatric
Association to help the clinical progress of individuals with psychological
problems. See Mainella v. Colvin, No. 13-CV-2453, 2014 WL 183957, at *5.
(E.D.N.Y. 2014).

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in the 41 to 50 range was “indicative of an impairment
which would produce serious symptoms such as suicidal
ideation, severe obsessive rituals, frequent shoplifting
or a severe impairment in social, occupational or school
functioning.” T. 46, n.1.
opinion,

however,

the

In weighing Dr. Landsman’s

ALJ,

noting

that

the

record

contained “no actual treatment records,” found that the
doctor’s “opinions and conclusions illustrate[d] a level
of

impairment

unsupported

by

any

other

documented

evidence of record.” T. 46.
In his evaluation, Dr. Landsman found that plaintiff
demonstrated,

among

other

things,

a

severe

mental

disorder, reading speed and comprehension test scores
inconsistent with a college graduate, a severally limited
tolerance for frustration and even moderate expectations,
and a likelihood of explosive episodes caused by his
underlying

rage.

T.

460-461.

In

a

December

2012

statement, Dr. Landsman noted that he had begun treating
plaintiff on a monthly basis following his August 2011
evaluation. T. 476.

A psychiatric complaint form dated

July 2, 2012 reveals that plaintiff was admitted to the

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Cayuga Medical Center following an incident where he was
found running naked outside and screaming that he had
taken bath salts and acid. T. 477, 509, 517.

Prior to

discharge, plaintiff denied any psychiatric history or
treatment despite his ongoing treating relationship with
Dr. Landsman.

He was living in a tent in the backyard of

a friend at the time. T. 519.

Plaintiff was again

admitted to the Cayuga Medical Center 14 days later for
complaints of chest pain after accidentally ingesting a
cookie containing marijuana. T. 534, 540.

A treatment

note dated August 16, 2012 reveals that plaintiff told
Dr. Landsman that he had not been using any recreational
drugs.
In a mental residual functional capacity assessment
completed by Dr. Landsman on August 15, 2012, he opined
that plaintiff had: 1) moderately severe limitations in
areas of understanding and memory; (2) moderately severe
limitations

in

the

ability

to

carry

out

detailed

instructions which may or may not be repetitive; (3)
severe limitations in his ability to complete a normal
workday

or

workweek

without

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interruptions

from

psychologically-based symptoms; (4) moderate limitations
concerning interactions with supervisors and the general
public; and (5) moderate limitations in the ability to
adapt

to

unexpected

work

environment

changes,

set

realistic goals or make plans indendently, be aware of
normal hazards and take necessary precautions, and travel
in unfamiliar settings or take public transportation. T.
471-472.

Dr. Landsman further opined that plaintiff

could never be expected to complete a normal workweek or
workday

without

interruption

and,

his

memory,

understanding, and concentration are likely affected at
least

80%

of

the

time.

T.

472.

Most

work-related

stressors could be expected to exacerbate plaintiff’s
condition. T. 472.
The

record

before

the

Court

also

contains

Dr.

Landsman’s treatment records from April 2012 through
February 2013, which were submitted by plaintiff to the
Appeal Council upon his request for review of the ALJ’s
decision.

These

records

reveal

that

Dr.

Landsman

increased Plaintiff’s sertraline dosage on two occasions.
T. 595, 596.

Dr. Landsman noted that plaintiff continued

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to suffer nightmares, increased anxiety, racing thoughts,
stress, panic, traumatic flashbacks, and other symptoms
related to his PTSD. T. 597, 598, 604.

It was further

noted that plaintiff was failing out of his community
college

program

personal

and

treatment,

and

family

continuing

to

struggle

relationships.

plaintiff’s

condition

T.

601.

was

in

his

During

consistently

unchanged or deteriorating. T. 595-605.
The Commissioner concedes that the ALJ violated his
affirmative

duty

to

assist

the

plaintiff

in

fully

developing the record by failing to make any attempt to
obtain Dr. Landsman’s psychiatric treatment records. The
Commissioner further concedes that the ALJ also erred in
affording

Dr.

Landsman’s

opinion

little

weight,

an

analysis which was expressly based, in part, on the lack
of treatment records in the file.
First,

SSA

regulations

require

that,

prior

to

determining that a claimant is not disabled, an ALJ “make
every

reasonable

medical

reports

effort
from

to

[his]

help
own

[the

claimant]

medical

sources

get
when

[given] permission to request the reports.” 20 C.F.R. §

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416.912(d).

In discounting Dr. Landsman’s opinion, the

ALJ repeatedly referenced the lack of treatment records
and found that the doctor’s assessment that plaintiff’s
mental impairments precluded plaintiff from full-time
employment “lack substance.”
under

these

circumstances,

The Court finds that,
the

ALJ

was

remiss

with

respect to his duty to develop the record by failing to
pursue further clarification of Dr. Landsman’s opinion.
It is well established that, when an adjudicator is
unable to definitively determine the basis of the opinion
on

the

case

reasonable

record,

effort

to

he

or

she

recontact

“must
the

‘make

every

source

for

clarification of the reasons for the opinion.’” Colon v.
Astrue, No. 03:08CV1276, 2009 WL 1289244, at *3 (D.Conn.
2009),

citing

404.1512(e)(1).

SSR

96–5p

(1996)

and

20

C.F.R.

§

There is no indication in the record

that the ALJ made any effort to recontact Dr. Landsman to
determine the basis of the doctor’s assessment, an error
which is compounded by the ALJ’s decision to assign Dr.
Landsman’s opinion little weight for lack of substance
and dearth of treatment records.

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The treating physician rule requires that the views
and medical opinions of the treating physician be given
controlling weight, if they are supported by objective
medical evidence and are “not inconsistent with other
substantial evidence in the case record.” Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir.2008).

Moreover, the

treating physician rule is particularly important in the
context of mental health in light of the difficulty of
diagnosing mental impairments by a single consultative
examination. Bodden v. Colvin, No. 14-CV-08731, 2015 WL
8757129, at *9 (S.D.N.Y. 2015).
importance
present
accorded

to

the

treating

circumstances,
significant

psychiatric

evaluation

the

physician
Court

weight
of

Despite this added

Dr.

to

rule

notes
the

Kavitha

under

that

the

the
ALJ

consultative
Finnity,

who

assessed functional limitations to a much lesser extent
than Dr. Landsman.

The Court concludes that, as the ALJ

expressly “indicated that the absence of [Dr. Landsman’s]
records directly affected his ability to evaluate the
treater[‘s] opinion[], the ALJ was required to make sure
that he took adequate steps to try to obtain the missing

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records before simply assigning” little weight to the
doctor’s opinion. Rivera v. Colvin, No. 11CIV7469, 2014
WL 3732317, at *31 (S.D.N.Y. 2014).
Based on the foregoing, the ALJ committed reversible
error by, as acknowledged by the Commissioner, failing to
adequately develop the record before assigning weight to
Dr. Landsman’s opinion.
B.

Remedy
The fourth sentence of Section 405(g) of the Act

provides that the Court “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,

-14-

remanded

to

the

[Commissioner] for further development of the evidence.”)
(internal quotation marks omitted).
Therefore, on the basis of this record, remand is
appropriate with directions to the ALJ to re-weigh Dr.
Landsman’s opinion and re-evaluate plaintiff’s RFC.
V.

Conclusion
For the foregoing reasons, defendant’s motion for

judgment on the pleadings seeking remand (Dkt # 15) is
granted.

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:

February 25, 2015
Rochester, New York

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