Canty v. Colvin
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings; denying 11 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 12/16/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JAQUAN CANTY,
Plaintiff,
No. 6:14-cv-06713(MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Represented by counsel, Jaquan Canty (“Plaintiff”) brings this
action
pursuant
to
Title
XVI
of
the
Social
Security
Act,
challenging the final decision of the Commissioner of Social
Security
(“the
Commissioner”)
denying
his
application
for
Supplemental Security Income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). For the reasons
discussed below, the Commissioner’s decision is reversed, and the
matter
is
remanded
for
further
administrative
proceedings
consistent with this opinion.
II.
Procedural Status
On July 6, 2012, Plaintiff protectively filed a claim for SSI,
alleging disability beginning on September 7, 2008, based on
inflammatory colitis, history of C. difficile colitis, Crohn’s
disease,1 inflammatory bowel disease, history of learning disorder
1
Plaintiff was diagnosed with Crohn’s disease in April of 2006. T.245.
with
borderline
intelligence,
major
depressive
disorder,
oppositional defiant disorder (“ODD”), and history of attention
deficit disorder (“ADHD”). E.g., T.243.2 The application initially
was denied on September 26, 2012. Plaintiff requested a hearing,
which was held by Administrative Law Judge Rosanne M. Dummer (“the
ALJ”) on April 16, 2013 via videoconference. Plaintiff appeared
with his attorney and testified, as did a vocational expert (“the
VE”). The ALJ issued an unfavorable decision on May 2, 2013.
T.13-31. After the hearing, Plaintiff submitted additional records
to the Appeals Council, but on November 4, 2014, the Appeals
Council denied Plaintiff’s request for review. The ALJ’s decision
therefore became the Commissioner’s final decision. This timely
action followed.
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. The parties have submitted comprehensive
factual recitations contained in the parties’ briefs, which the
Court adopts and incorporates by reference. The record evidence
will be discussed in further detail below, as necessary to the
resolution of the parties’ contentions. For the reasons that
follow, the Court reverses the Commissioner’s decision and remands
2
Numbers preceded by “T.” refer to pages from the administrative transcript,
submitted by Defendant as a separately bound exhibit.
-2-
the matter 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 Act, a 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 reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
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
followed
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date. T.20. At
step two, the ALJ found that Plaintiff has the following “severe”
-3-
impairments:
inflammatory
bowel
disease
with
a
history
of
noncompliance; history of ADHD; depressive disorder; ODD; learning
disability; and history of substance abuse disorder. T.20.
At step three, the ALJ determined that Plaintiff did not meet
or
equal
any
listed
impairment,
including
Listings
5.06
(Inflammatory Bowel Disease) Listing 12.04 (Affective Disorders),
and
12.05
(Intellectual
Disability).
The
ALJ
then
assessed
Plaintiff with the residual functional capacity (“RFC”) to
[l]ift/carry fifty pounds occasionally and twenty-five
pounds frequently; sit six of eight hours; and stand/walk
six of eight hours. He can occasionally climb ramps and
stairs. Secondary to mental limitations, he is able to
understand, remember, and carry out short simple
instructions. He is able to sustain attention for simple
tasks for extended periods of two-hour segments in an
eight hour day. He is able to tolerate at least brief and
superficial contact with others and on an occasional
basis with the public. He is able to adapt to changes as
needed for simple, routine, repetitive type tasks. He can
perform work, which allows for flexibility to use the
restroom 1-2 times per shift outside of customary work
breaks.
T.22.
At step four, the ALJ noted that Plaintiff was “only age 22
and appear[ed] to have worked briefly as a dietary aide (medium
level, unskilled), and in [sic] fast food cook (medium level,
skilled, gut generally performed at the unskilled level),” but only
nominal earnings were reported. Therefore, Plaintiff had no past
relevant work. As of the application date, Plaintiff was 21 years
old and therefore a “younger individual” under the Regulations. He
-4-
had a limited education insofar as he had studied for but not
obtained his GED, and the ability to communicate in English. T.29.
The ALJ relied on the VE’s hearing testimony to find that there are
jobs that exist in significant numbers in the national economy that
can be performed by a person of Plaintiff’s age, and with his
education, vocational experience, and RFC. The ALJ cited the
representative occupations identified by the VE, namely, janitor
and kitchen helper (unskilled, medium), and laundry worker, office
cleaner,
and
cafeteria
attendant
(unskilled,
light).
T.30.
Therefore, the ALJ found that Plaintiff was not disabled. T.30.
V.
Discussion
A.
RFC Unsupported by Substantial Evidence
Plaintiff argues that, contrary to the ALJ’s assertion, the
opinion of consultative physician Dr. Karl Eurenius contradicted
her RFC assessment and was, in part, too vague to constitute
substantial
evidence.
Therefore,
Plaintiff
argues,
the
ALJ
improperly substituted her own lay opinion as the basis for the
RFC, rather than actual medical evidence or opinion.
Pursuant to Social Security Ruling (“SSR”) 83-10, RFC is
defined as follows: “A medical assessment of what an individual can
do in a work setting in spite of the functional limitations and
environmental restrictions imposed by all of his or her medically
determinable impairment(s). . . .” SSR 83-10, 1983 WL 31251, at *7
(S.S.A. 1983). “As explicitly stated in the regulations, RFC is a
-5-
medical assessment; therefore, the ALJ is precluded from making his
assessment without some expert medical testimony or other medical
evidence to support his decision.” Gray v. Chater, 903 F. Supp.
293, 301 (N.D.N.Y. 1995) (citing 20 C.F.R. § 404.1513(c), (d)(3));
other citation omitted).
The ALJ’s RFC assessment provided in pertinent part that
Plaintiff
could
twenty-five
stand/walk
According
Dr.
“[l]ift/carry
pounds
six
to
Eurenius
of
fifty
frequently;
eight
the
ALJ,
“was
not
sit
hours.”
the
pounds
six
T.28.
report
contradicted
of
by
of
occasionally
eight
hours;
(emphases
and
supplied).
consultative
the
and
[RFC].”
physician
T.28.
As
discussed further below, the Court disagrees.
During Dr. Eurenius’ examination of Plaintiff on August 27,
2012, Plaintiff complained of “left upper quadrant [abdominal] pain
and diarrhea frequently with blood in his bowel movements.” T.648.
Plaintiff currently was taking Asacol and prednisone for his
Crohn’s disease, and Wellbutrin for his depression. T.648. On
examination,
Dr.
Eurenius
noted
decreased
bowel
sounds
and
tenderness in the left upper quadrant of the abdominal region with
minimal
rebound.
T.650.
For
his
medical
source
statement,
Dr. Eurenius opined that Plaintiff was “moderately limited in
activities which would keep him away from toilet facilities or
repetitive exertional activities which increase his abdominal pain
and diarrhea.” T.650.
-6-
SSR 83-10 defines “occasionally” as “occurring from very
little up to one-third of the time[,]” i.e., “no more than about
2 hours of an 8-hour workday.” 1983 WL 31251, at *5. “Frequent”
means “occurring from one-third to two-thirds of the time[,]” i.e.,
“approximately 6 hours of an 8-hour workday.” Id. at *6. SSR 83-10
notes that in “most” jobs at the medium exertional level, “[b]eing
able to do frequent lifting or carrying of objects weighing up to
25 pounds is often more critical than being able to lift up to
50 pounds at a time.” Id. at *6. SSR 83-10 further explains that
“[t]he considerable lifting required for the full range of medium
work usually requires frequent bending-stooping,” i.e., “a type of
bending in which a person bends his or her body downward and
forward
by
bending
the
spine
at
the
waist.”
Id.
(emphases
supplied).
As noted above, Dr. Eurenius’s opinion was that Plaintiff is
“moderately limited in . . . repetitive exertional activities which
increase his abdominal pain and diarrhea.” Based on the definitions
contained
in
SSR
83-10,
the
ALJ’s
RFC
assessment
cannot
be
consistent with Dr. Eurenius’s restrictions, because it effectively
requires Plaintiff to engage in “considerable” lifting and carrying
by “frequently” bending and stooping at the waist to lift and carry
objects weighing up to 25 pounds. The ALJ also is incorrect in
characterizing her RFC as limiting Plaintiff to “medium level work,
with occasional postural movements, to the extent that heavy work
-7-
and repetitive activity may exacerbate abdominal issues.” T.28
(emphasis supplied).
As noted above, medium level work entails
frequent bending and stooping and considerable lifting, as opposed
to occasional bending, stooping, and lifting. See SSR 83-10, 1983
WL 31251, at *6. The ALJ’s assertion that her RFC assessment is
consistent with Dr. Eurenius’s report and with the Commissioner’s
own regulations is legally incorrect and unsupported by substantial
evidence.
The other key component of the ALJ’s RFC assessment pertains
to the frequency of Plaintiff’s need to take bathroom breaks, and
the duration of those breaks. According to the ALJ, Plaintiff can
perform a job that “allows for flexibility to use the restroom 1-2
times per shift outside of customary work breaks.” The ALJ noted
that, per the VE’s testimony, normal breaks occur every two hours,
and a lunch break is 30 to 60 minutes. T.30. Plaintiff testified at
the hearing that he has to use the bathroom eleven times a day, and
about two to three times per month, he has accidents where he
cannot control his bowels and soils himself. T.56, 67. He testified
that if he walks for too long, he will need to use the bathroom so
badly that he “c[ould]n’t even hold it.” T.56. Upon questioning by
Plaintiff’s attorney, the VE testified that unskilled jobs such as
the ones identified tolerate a person being off-task only about 10
percent or less of the time. T.31. The VE testified that if a
person is away from his workstation 10 percent or more of the day
-8-
consistently, due to having to use the bathroom, that person would
not be able to perform and sustain full-time employment. T.78. The
VE commented that “the unpredictability of [Plaintiff’s] need to
use the restroom, as well as he said he has some accidents, which,
especially defecation, can . . . create an aroma and not be good
for any type of work situation.” T.78.
The ALJ rejected the hypotheticals presented by Plaintiff’s
attorney because she found “[n]o evidence corroborates that the
claimant’s abdominal issues are to the extent alleged, or that
extra time for restroom breaks is warranted.” T.30; see also T.27
(“[T]he alleged frequency and extent of bathroom breaks are not
corroborated.”). The ALJ did not identify the nature or extent of
the corroboration of Plaintiff’s bowel movements she would have
required. Nor did the ALJ explain how Plaintiff–an ambulatory adult
who
does
not
need
or
require
someone
to
help
him
use
the
bathroom—plausibly could have obtained corroborative evidence of
the frequency and duration of his trips to the bathroom to move his
bowels. Moreover, treatment notes by Plaintiff’s medical providers
indicate that Plaintiff has reported having more than eleven bowel
movements per day. See T.479, 537 (for the three weeks prior to his
admission to the hospital on or about December 29, 2011, Plaintiff
was having “hematochezia daily and for past few days, has been
moving his bowels 15 to 20 times per day”); T.499-500 (on admission
to hospital on November 27, 2011, Plaintiff reported 12 bowel
-9-
movements (watery, bloody stools) per day for the last 3 to 4 weeks
and left-sided abdominal pain rated at 10/10 on the pain scale).
Plaintiff’s medical providers did not require him to provide
corroboration of his bowel-related symptoms before admitting him to
the hospital. Particularly in light of the facts that Plaintiff is
not in the hospital (where it is at least plausible that his bowel
movements would be tracked by nursing staff) and is capable of
toileting himself, the ALJ’s demand for corroborative evidence of
the frequency and duration of his bowel movements is unreasonable.
Furthermore, the ALJ cannot rely on Dr. Eurenius’ opinion as
substantial evidence to support the aspect of her RFC assessment
regarding Plaintiff’s need for bathroom breaks. As noted above,
Dr. Eurenius opined that Plaintiff is “moderately limited in
activities which would keep him away from toilet facilities.”
The
Court notes that Social Security regulations do not define the term
“moderate.” E.g., Figueroa v. Astrue, No. ED CV 10-385-E, 2010 WL
3789576, at *2 n. 3 (C.D. Cal. 2010) (citation omitted). The phrase
used by Dr. Eurenius, “activities which would keep him away from
toilet
facilities,”
also
is
subject
to
a
wide
range
of
interpretations. Given the unpredictable nature of Crohn’s disease,
which is characterized by “[p]ersistent [d]iarrhea,” the “[u]rgent
need
to
move
bowels,”
and
the
-10-
“[s]ensation
of
incomplete
evacuation,”3 among other symptoms, the types of “activities”
Plaintiff could tolerate and how far “away” he could be from a
toilet facility at any time could change from day to day. The ALJ,
without a discernible rationale, interpreted this vague statement
by Dr. Eurenius as being consistent with work that allows for
“flexibility” to use the restroom one to two times beyond customary
work breaks. This was error. See, e.g., Andrews v. Colvin, No. 13
CIV.2217 RWS, 2014 WL 3630668, at *11 (S.D.N.Y. July 22, 2014)
(consultative physician stated Plaintiff had “moderate limitations
to squatting, lifting and carrying, pushing and pulling secondary
to back pain”; court found “the ALJ erred in relying on the
doctor’s vague, non-specified notes regarding Plaintiff’s ability
to squat, lift, carry, push and pull”) (citing Selian v. Astrue,
708 F.3d 409, 421 (2d Cir. 2013)). “Ambiguous evidence . . .
triggers the ALJ’s duty to ‘conduct an appropriate inquiry.’”
Tonapetyan
v.
Halter,
242
F.3d
1144,
1150
(9th
Cir.
2001)
(quotation omitted). That inquiry was not undertaken here.
For the multiple reasons discussed above, the ALJ’s RFC
assessment is the product of legal error and is unsupported by
substantial evidence. Accordingly, remand is required.
3
http://www.ccfa.org/what-are-crohns-and-colitis/what-is-crohns-dis
ease (last accessed Dec. 13, 2015).
-11-
B.
Erroneous Credibility Assessment
Plaintiff
contends
credibility
of
his
limitations
resulting
that
the
subjective
from
ALJ
erred
complaints
his
in
of
impairments,
analyzing
pain
in
and
the
other
particular
by
unjustifiably penalizing him for noncompliance with treatment. The
fact that
a
claimant is
not
fully
compliant
with
prescribed
treatment or medications does not preclude a finding of disability.
See, e.g.,
Frankhauser
v.
Barnhart,
403
F.
Supp.2d
261, 277
(W.D.N.Y. 2005) (“Nor does the fact that Plaintiff often failed to
fully comply with his prescribed treatment require a finding of
‘not disabled.’”). Rather, “[c]ompliance with prescribed treatment
that is capable of restoring a plaintiff’s ability to work is
required to obtain benefits, unless there is a good reason for not
following prescribed treatment.” Id. at 277-78 (citing 20 C.F.R.
§§ 404.1530, 416.930). “[T]he ALJ has an obligation to take the
claimant’s mental limitations into account in determining whether
such a failure truly reflects an improvement in his condition.”
20 C.F.R. §§ 404.1530(c), 416.930(c). Where, as here, an ALJ draws
an adverse credibility inference against a claimant based on a
failure to follow prescribed treatment, SSR 96-7p 1996 WL 374186
(S.S.A. July 2, 1996), provides that such an inference may not be
made
“without
first
considering
any
explanations
that
the
individual may provide, or other information in the case record
-12-
that may explain infrequent or irregular medical visits or failure
to seek medical treatment.” 1996 WL 374186, at *7.
Plaintiff asserts that the ALJ did not evaluate properly the
reasons why he was not consistently compliant with his medications,
which included his below age-level maturity and independent living
skills, as well as his lack of health insurance. For instance,
following a progress conference in April 2009 from the Lasalle
School, a boarding school in Albany where Plaintiff was sent after
his birth mother relinquished her parental rights over him and his
seven siblings, the staff wrote that although Plaintiff was almost
nineteen, he was “much younger” “developmentally” and therefore had
not achieved independent living skills appropriate for his agelevel. T.745. It was noted that Plaintiff “continues to struggle
with his mental health issues [low-grade depression], which is
[sic]
preventing
him
from
making
adequate
gains
in
learning
independent living skills.” T.746. In August 2012, consultative
psychologist Dr. Christine Ransom confirmed that Plaintiff has
major
depressive
borderline
disorder,
intellectual
currently
capacity.
moderate,
T.654.
Dr.
and
probable
Ransom’s
report
indicated that Plaintiff’s insight and judgment were “fair” because
he was not in treatment for his depression. However, the ALJ failed
to
consider
whether
poor
judgment
stemming
from
Plaintiff’s
probable borderline intellectual functioning, depressive disorder,
developmental
immaturity,
or
a
combination
-13-
of
these
factors,
contributed
to
his
treatment
regimen.
inconsistency
See,
in
e.g.,
maintaining
a
prescribed
Kennerson
v.
Astrue,
No. 10–CV–6591(MAT), 2012 WL 3204055, at *13 (W.D.N.Y. Aug. 3,
2012)
(“[T]he
ALJ
failed
to
take
into
account
Plaintiff’s
borderline intellectual functioning and lack of insight into her
own limitations, which were likely contributors in her failure to
continue mental health treatment.”).
With regard to Plaintiff’s lack of insurance, he testified
that when he first was diagnosed with Crohn’s disease, he was
living at the Lasalle School. His medication was paid for and
managed by the school, and he “didn’t have to miss a day.” T.68
Outside of that structured setting, Plaintiff testified, he had
difficulty obtaining the necessary care due to denials by Medicaid,
which led to periods of being uninsured,4 during which he could not
purchase his medications. Plaintiff testified that one of the
reasons he went to the hospital was because he could obtain
medications there; however, once he was discharged, he would
receive a bill he could not afford, and still could not pay for his
medications because he lacked insurance. An ALJ is not permitted to
penalize a claimant for being unable to afford further medical
treatment.
E.g.,
Pierce
v.
Astrue,
946
F.
Supp.2d
296,
307
4
A hospital note dated November 3, 2009, indicates that Plaintiff “had been
under the care of a pediatric gastroenterologist taking 6-MP and Liaida but was
then incarcerated and since released in 7/09 has not been on any medications and
could not get an adult GI appointment until 2/10.” T.603; see also T.616 (he has
“not been on any meds since 7/09 after leaving juvinile [sic] home”).
-14-
(W.D.N.Y. 2013) (“Given the remedial purpose of Social Security,
courts generally take the view that ‘“[i]t flies in the face of the
patent purpose of the Social Security Act to deny benefits to
someone because he is too poor to obtain treatment that may help
him.”’) (quotation and citations omitted; alteration in original);
see also McGregor v. Astrue, 993 F. Supp.2d 130, 142–43 (N.D.N.Y.
2012) (noting that ALJ erred by failing to consider claimant’s
testimony that he did “not have health insurance, which certainly
provide[d] an explanation for failing to seek treatment”).
The
ALJ
also
appeared
to
penalize
Plaintiff
for
being
noncompliant due to what one of his doctors characterized as
“challenged social circumstances.” T.705. Read in context, this was
referring to Plaintiff’s difficulties obtaining transportation.
Plaintiff’s lack of insurance, unstable family structure, and
mental
impairments
also
constitute
“challenged
social
circumstances.” In any event, it is not a proper basis for finding
Plaintiff less credible.
Finally,
rather
than
discussing
the
required
credibility
factors set forth in 20 C.F.R. § 416.929 and SSR 96-7p5 the ALJ
5
SSR 96-7p states that “20 C.F.R. 404.1529(c) and 416.929(c) describe the
kinds of evidence, including the factors below, that the adjudicator must
consider in addition to the objective medical evidence when assessing the
credibility of an individual’s statements: 1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The
type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than
medication, the individual receives or has received for relief of pain or other
symptoms; 6. Any measures other than treatment the individual uses or has used
-15-
relied heavily on Plaintiff’s demeanor during the hearing to reject
his
subjective
complaints.
See
T.27
(“[T]he
undersigned
has
considered and made reductions based upon the claimant’s demeanor
as a witness.”). However, the ALJ did not explain what about
Plaintiff’s demeanor was so “poor” that it warranted “reductions”
in his credibility. The Court recognizes that Plaintiff has been
incarcerated and has, by his own admission, abused marijuana as a
means to cope with his depression and pain. However, “[e]very
effort should be made to separate a claimant’s personality, however
unsympathetic, from the evaluation of [his] physical [and mental]
impairments.” Martinez v. Heckler, 629 F. Supp. 247, 251 (E.D.N.Y.
1986). The ALJ also found that
Plaintiff’s “demeanor” justified
her RFC assessment and adequately accounted for his limitations.
See T.27 (“[T]he undersigned has found his credibility as a witness
to be poor and his demeanor during the hearing consistent with the
limitations established in his residual functional capacity.”). The
hearing lasted 52 minutes, T.49, 79, and Plaintiff neither had to
use the bathroom nor did he have an accident. Presumably, this is
what the ALJ meant by her assertion that her RFC assessment was
“consistent” with Plaintiff’s “demeanor.” This is akin to the
disfavored “sit and squirm” test, whereby an ALJ discounts a
claimant’s pain complaints because he can sit through a hearing.
to relieve pain or other symptoms . . .; and 7. Any other factors concerning the
individual’s functional limitations and restrictions due to pain or other
symptoms.” 1996 WL 374186, at *3 (emphasis supplied).
-16-
The “mere fortuity” that Plaintiff did not lose control over his
bowels during the course of the hearing should not be found to
outweigh the medical evidence outlining Plaintiff’s history of
flares and exacerbations of his Crohn’s disease. See Pascariello v.
Heckler, 621 F. Supp. 1032, 1037 (S.D.N.Y. 1985) (finding error
where the ALJ disregarded the medical evidence of a rigid bladder
neck and the diagnosis of incontinence, by reliance on the fact
that the plaintiff refused corrective surgery, his observation of
plaintiff’s
demeanor,
plaintiff’s
statements
that
he
would
occasionally drive his car and plaintiff’s inconsistent testimony
concerning the use of an incontinence product) (citation omitted).
C.
Appeals Council’s Failure to Review Plaintiff’s Case
Based on New Evidence
New evidence submitted to the Appeals Council becomes part of
the administrative record. Perez v. Chater, 77 F.3d 41, 45 (2d Cir.
1996). The Appeals Council will consider new evidence, along with
the entire administrative record, only if (1) the evidence is
material, and (2) the evidence relates to the period on or before
the ALJ’s hearing decision. 20 C.F.R. § 404.970(b). The Appeals
Council
“will
then
review
the
case
if
it
finds
that
the
administrative law judge’s action, findings, or conclusion is
contrary to the weight of the evidence currently of record.” Id.
Plaintiff argues that the Appeals Council’s conclusory denial
of review was erroneous. See Pl’s Mem. 14-16.
In particular,
Plaintiff cites the letter dated May 26, 2013, from Certified
-17-
Physician Assistant Thomas W. Sorber (“PA-C Sorber”) stating that
Plaintiff was treated from May 20, 2013, to May 26, 2013, as an
inpatient at Strong Memorial Hospital for an acute exacerbation of
Severe Crohn’s Disease.6
illness
results
in
T.764. PA-C “clarif[ied] [that] this
frequent
episodes
of
abdominal
pain
and
increased bowel movements.” Id. PA-C Sorber stated, “It is my
recommendation that [Plaintiff] should be allowed to take more
frequent bathroom breaks and his work week should be limited to
20 hours.” Id.
Because the Court is remanding for further proceedings, it
need not determine if the Appeals Council’s denial of review was
correct in light of the newly submitted records. These records,
including
PA-C
Sorber’s
letter,
have
become
part
of
the
administrative record. The ALJ will be obliged to consider them on
remand.
VI.
Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Dkt #11) is denied. Plaintiff’s motion
for
judgment
on
the
pleadings
(Dkt
#9)
is
granted.
The
6
Severe Crohn’s Disease is distinguishable from Mild Crohn’s Disease. In
Mild Crohn’s Disease, the patient has fewer bowel movements, no or minimal
abdominal pain, and a sense of well-being that is normal or close to normal. By
contrast, in Severe Crohn’s Disease, “the patient has bowel movements frequent
enough to need strong anti-diarrheal medication,” “severe” abdominal pain usually
located in the lower right quadrant of the abdomen, a poor sense of well-being
and experiences complications that may include weight loss, joint pain,
inflammation in the eyes, reddened or ulcerated skin, fistulas, abscesses, and
fever.” https://umm.edu/health/medical/reports/articles/crohns-disease
(last
accessed Dec. 13, 2015).
-18-
Commissioner’s decision is reversed, and the matter is remanded for
further administrative proceedings consistent with this Decision
and
Order.
In
particular,
the
ALJ
is
directed
to
re-assess
Plaintiff’s RFC in light of the records submitted to the Appeals
Council in connection with the prior administrative proceeding;
evaluate any medical opinions in those new records in accordance
with
the
applicable
factors;
re-contact
Dr.
Eurenius
for
clarification of the ambiguities in his consultative opinion as
discussed at length above; re-evaluate Plaintiff’s credibility in
accordance with the required regulatory factors and SSR 96-7p; and
perform a new step five analysis.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
December 16, 2015
Rochester, New York
-19-
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