King v. Colvin
Filing
15
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioner's decision is reversed and the matter is remanded for further proceedings consistent with this Decision and Order; denying 13 Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/11/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MURRAY LAMONT KING, JR.,
Plaintiff,
6:15-cv-06137(MAT)
DECISION AND ORDER
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Represented by counsel, Murray Lamont King, Jr. (“Plaintiff”)
brings this action pursuant to Title XVI of the Social Security Act
(“the Act”), seeking review of the final decision of the Acting
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.
II.
Procedural Status
On November 6, 2010, Plaintiff protectively filed for SSI,
alleging
disability
commencing
on
March
6,
2010.
After
his
application was denied, Plaintiff requested a hearing, which was
held on July 8, 2014, in Rochester, New York, before administrative
law judge Michael W. Devlin (“the ALJ”). Plaintiff appeared with
his attorney and testified, as did impartial vocational expert
Julie A.
Andrews.
The
ALJ
issued
an
unfavorable
decision
on
August 11, 2014. Plaintiff requested review by the Appeals Council,
which declined to hear the case on January 16, 2015, making the
ALJ’s decision the final decision of the Commissioner. This timely
action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). For the reasons
discussed below, Plaintiff’s motion is granted, and the matter is
remanded for further administrative proceedings.
III. Summary of Relevant Evidence
Because Plaintiff challenges only the mental aspect of the
ALJ’s residual functional capacity (“RFC”) assessment,1 and, in
particular, the ALJ’s weighing of medical source opinions, the
Court limits its factual summary to the functional assessments
offered by the mental health providers who treated him.
A.
Medical Source Opinions
Licensed Master Social Worker Shannon Mackey (“LMSW Mackey”)
completed a psychological assessment for the determination of
1
The ALJ found that notwithstanding his severe impairments of depressive
disorder, NOS; psychotic disorder, NOS; PTSD; and status-post gunshot wounds
right hip, right knee, and chest, Plaintiff has the mental RFC to “understand,
remember, and carry out simple instructions and tasks; occasionally interact with
co-workers and supervisors; rarely work in conjunction with co-workers; can have
little to no contact with the general public; and is able to consistently
maintain concentration and focus for up to two hours at a time.
-2-
employability
Plaintiff
on
was
June
2,
2011.
depressed,
T.239-41.2
See
and
was
She
indicated
experiencing
auditory
hallucinations, nightmares and anxiety. Plaintiff, on occasion, had
episodes attributed to his psychiatric conditions including medical
hospitalizations
or
emergency
room
visits;
acute
psychiatric
hospitalization; loss of a job or failure to complete education or
training; and behavior that interfered with daily activities. LMSW
Mackey diagnosed Plaintiff depressive disorder and post-traumatic
stress
disorder
(“PTSD”).
She
opined
that
Plaintiff
was
“moderately” limited, i.e., “unable to function 10-25% of the time,
in demonstrating the capacity to perform simple and complex tasks
independently; and the capacity to perform low stress and simple
tasks.
T.241.
LMSW
Mackey
opined
these
limitations
would
be
expected to last for six months. T.241.
On
February
27,
2012,
LMSW
Mackey
completed
another
psychological assessment for the determination of employability
dated February 27, 2012. T.244-47. She again indicated Plaintiff
suffered from depression, auditory hallucinations, nightmares and
anxiety, and that on occasion, he suffered episodes attributed to
his psychiatric conditions including medical hospitalizations or
emergency room visits; acute psychiatric hospitalization; loss of
a job or failure to complete education or training; and behavior
2
Numerals preceded by “T.” refer to pages in the certified administrative
transcript filed by the Commissioner in this matter.
-3-
that interfered with daily activities. Diagnoses were depressive
disorder, PTSD, psychotic disorder and alcohol abuse. LMSW Mackey
again opined that Plaintiff was moderately limited, defined as
unable to
function
10-25%
of
the
time,
in
demonstrating
the
capacity to perform simple and complex tasks independently; and the
capacity to perform low stress and simple tasks. She also indicated
that he was moderately limited, defined as unable to function
10-25% of the time, in the capacity to follow, understand and
remember simple instructions and directions. These limitations were
expected to last three to six months.
On October 23, 2012, LMSW Joyce Smith completed another
psychological assessment for determination of employability. T.27275. She indicated that Plaintiff’s depression symptoms included
sadness, anger, frustration, easy agitation, and auditory and
visual hallucinations. On occasion, he suffered episodes attributed
to
his
psychiatric
conditions
including
acute
psychiatric
hospitalization; suicide attempt; and decompensations (episodes of
psychosis). LMSW Smith noted Plaintiff was diagnosed with psychotic
disorder and opined that he was “very limited”, defined as unable
to function more than 25% of the time, with regard to performing
simple and complex tasks independently; maintaining attention and
concentration for rote tasks; and performing low stress and simple
tasks. T.274. LMSW Smith opined that Plaintiff was “moderately
limited,” defined as being unable to function 10-25% of the time,
-4-
in
his
capacity
to
follow,
understand
and
remember
simple
instructions and directions; and regularly attend to a routine and
maintain a schedule. T.274. LMSW Smith indicated Plaintiff appeared
permanently disabled due to serious and persistent mental illness,
and that his condition was not expected to improve. T.275.
IV.
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the 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). When conducting a
substantial evidence review, a court’s responsibility is “‘to
conduct a searching inquiry and to scrutinize the entire record,
having in mind that the Social Security Act . . . is remedial in
purpose.’” Monette v. Astrue, 269 F. App’x 109, 110 (2d Cir. 2008)
(unpublished opn.) (quoting McBrayer v. Secretary of Health & Human
Servs., 712 F.2d 795, 798–99 (2d Cir. 1983)).
“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)). In assessing a legal
determination made by the Commissioner, “[the] court cannot fulfill
its statutory and constitutional duty to review the decision of the
-5-
administrative agency by simply deferring to the factual findings
of the ALJ. Failure to apply the correct legal standards is grounds
for reversal.” Townley, 748 F.2d at 112 (internal quotation marks
and citations omitted).
V.
Discussion
A.
RFC Not Supported by Substantial Evidence
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
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).
Here, the ALJ found Plaintiff to have the severe mental
impairments of depressive disorder, psychotic disorder and PTSD.
T.19. In his RFC assessment, the ALJ only limited Plaintiff to
simple work, with occasional interactions with co-workers and
supervisors, and rare work in conjunction with co-workers. T.21.
Plaintiff
argues
that
multiple assessments
these
by
limitations
Plaintiff’s
-6-
are
treating
contrary
to
therapists,
the
LMSW
Mackey and LMSW Smith. Plaintiff further contends that the ALJ
erroneously failed to reconcile the conflict between his mental RFC
assessment
of
Plaintiff,
and
LMSW
Mackey’s
medical
source
statement. Plaintiff asserts that the ALJ also improperly “played
doctor” to find that Plaintiff experienced “a steady trend of
improvement” in regards to his mental health. As discussed further
below, the record does not support the ALJ’s conclusion.
LMSW Mackey, as summarized above, offered two consistent
medical source statements dated June 2, 2011, and February 27,
2012. On each occasion, LMSW Mackey opined that Plaintiff was
“moderately limited” in demonstrating the capacity to perform
simple or complex tasks independently; and the capacity to perform
low stress and simple tasks. “Moderately limited” was defined as
being unable to function 10-25% of the time, in the affected areas.
See T.241, 246. In February 2012, LMSW Mackey added a further
limitation, stating that Plaintiff was “moderately limited,” i.e.,
unable to function 10-25% of the time, in his ability to follow,
understand and remember simple instructions and directions. T.246.
At the hearing, the vocational expert (“VE”) testified that if an
individual were off-task for 25% of the workday, he or she would be
unable to sustain employment. T.46.
The ALJ gave “some weight” to this opinion. He stated he
rejected LMSW Mackey’s opinion that Plaintiff was precluded from
work for three to six months, but that was the only portion of the
-7-
report that the ALJ specifically discounted. He then stated that
LMSW Mackey’s assessment of “moderate psychiatric limitation is
supported by the overall record,” T.23, and found Plaintiff capable
of performing simple work. However, this finding clearly is at odds
with the VE’s testimony about the employability of an individual
with the “moderate[ ] limit[ations]” assigned by LMSW Mackey. It is
apparent that there is a disconnect between the ALJ’s understanding
of the term “moderately limited” and LMSW Mackey’s understanding of
those terms as defined in the form she completed, i.e., unable to
function 10-25% of the time. Simply put, LMSW Mackey’s medical
source statement is not consistent with the ALJ’s mental RFC
assessment, which leaves the ALJ’s RFC assessment essentially
unsupported by any medical opinion evidence. The Court therefore is
unable to conclude that the RFC assessment is based on substantial
evidence.
B.
Mischaracterization of the Medical Evidence
Plaintiff argues that the ALJ selectively parsed the record
and ignored evidence of the severe symptoms and limitations caused
by Plaintiff’s depressive disorder and PTSD. The ALJ acknowledged
that “the record is punctuated with occasional references to
serious symptoms,” but he significantly understated this evidence
and offered his own lay opinion that Plaintiff was experiencing a
“steady trend of improvement.” T.23.
-8-
As
an
initial
matter,
the
alleged
“steady
trend
of
improvement” is not supported by the record. The only evidence the
ALJ cites to support this “improvement” is the note authored by
another of Plaintiff’s social workers, LMSW Kerry Bauer. Plaintiff
self-referred in April 2014, for depression and anxiety. On May 5,
2014, Plaintiff reported moderate anxiety and depression. LMSW
Bauer stated that Plaintiff’s thought content was remarkable for
negative ruminations; his affect was labile; and his mood was
depressed and angry. T.354. On May 22, 2014, LMSW Bauer stated that
Plaintiff’s
thought
content
was
remarkable
for
negative
ruminations; his affect was flat; and his mood was depressed. He
reported low appetite and waking up periodically throughout the
night. T.358. LMSW Bauer opined that there was “some incongruence
between [Plaintiff’s] reports of anxiety symptoms and the flat
affect with extreme minimal visible signs of anxiety presented.”
T.358. During an appointment, Plaintiff requested to leave early
because his grandmother was having surgery. LMSW Bauer reported
that he was “agitated as he rapidly walked out[,] . . . yelling[,]
‘my grandmother is going to die, man!’” T.359. LMSW Bauer observed
that
Plaintiff’s
thought
content
was
remarkable
for
negative
ruminations; his affect was labile; and his mood was depressed,
anxious and angry. T.359. Apart from one mention of Plaintiff’s
affect being “flat” and incongruent with alleged anxiety, the rest
of LMSW Bauer’s observations indicate that Plaintiff’s affect and
-9-
mood were consistently congruent with his diagnoses of depression
and disorder. Moreover, a “flat” affect is commonly a symptom of
depression,3 with which Plaintiff repeatedly has been diagnosed. It
is unclear to the Court how any of LMSW Bauer’s treatment notes
document an improvement in Plaintiff’s psychiatric symptoms. The
Court agrees with Plaintiff that this one treatment note is an
outlier, and does not represent a “trend.” As Plaintiff notes,
Plaintiff had a limited treatment relationship with LMSW Bauer,
meeting her only three times. In the third meeting, she asserted
there was “limited time spent with writer” and that he left early
because of concerns about his grandmother. Thus, this treatment
note,
purportedly
representative
of
a
“steady
trend
of
improvement,” was merely thirty minutes of treatment during the
three-year relevant period.
While
focusing
on
one
treatment
note
where
LMSW
Bauer
questioned the severity of Plaintiff’s anxiety (but, notably, not
his depressive symptoms), the ALJ ignored multiple other references
in the records to Plaintiff’s serious symptoms. For instance,
Plaintiff was treated by LMSW Paul Wilson on September 18, 2013,
reporting that he was stressed and depressed; LMSW Wilson rated
Plaintiff’s depression as “severe.” T.350. On examination, LMSW
3
A “flat affected” is defined, e.g., as “[a] marked attenuation of emotional
range, a sign often associated with major depression.” MCGRAW-HILL CONCISE DICTIONARY
O F
M O D E R N
M E D I C I N E
( 2 0 0 2 ) ,
a v a i l a b l e
a t
http://medical-dictionary.thefreedictionary.com/flat+affect (last accessed Apr.
8, 2016).
-10-
Wilson noted Plaintiff had poor hygiene, pressured speech, a
constricted affect, a depressed mood, and impaired judgment; his
thought content was remarkable for negative ruminations. T.350. He
assessed a GAF score of 41–50, indicative of “[s]erious symptoms
(e.g. suicidal
ideation,
severe
obsessional
rituals,
frequent
shoplifting) OR any serious impairment in social, occupation, or
school functioning (e.g., no friends, unable to keep a job).”
American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL, at
34 (4th ed.2000). On October 9, 2013, LMSW Wilson noted that
Plaintiff continued to feel stressed and depressed and to display
pressured
speech,
thought
content
remarkable
for
negative
ruminations, a depressed mood, and impaired judgment. T.351. He
eventually was discharged from treatment at Rochester Mental Health
on November 12, 2013, due to a failure to achieve mutually-agreed
upon goals. LMSW Wilson stated that “no change was measured” in
Plaintiff’s severe depression; Plaintiff struggled with social
relationships, and no functional change in this area had been
measured. T.339. LMSW Wilson noted that Plaintiff had last scored
“severe” on depression screening tests, and his prognosis was
“limited” given his incomplete participation in treatment. T.339.
The ALJ also selectively parsed the records in regards to
Plaintiff’s inappropriate behaviors during treatment, only citing
one time, in March 2011, when Plaintiff was described as being
“argumentative and verbally and physically threatening to his
-11-
doctor.” T.22. In April 2012, Plaintiff became very upset and
verbally abusive with Dr. Zabad, his primary care physician. T.232.
He kept repeating that after being shot three times for no reason,
his “life never came back to normal.” T.232. Despite Dr. Zabad’s
attempts to assuage his anger, Plaintiff would not calm down. In
August 2012, Plaintiff arrived at Rochester Mental Health after his
scheduled appointment time had passed. He refused to leave when
asked, and demanded to speak to his therapist’s supervisor. T.234.
And, as noted above, in April 2014,
he left early from his
assessment with LMSW Bauer in a highly agitated state. The ALJ’s
downplaying of Plaintiff’s seriously psychiatric symptoms calls
into question the substantiality of the evidence supporting his RFC
assessment.
“To
determine
whether
the
findings
are
supported
by
substantial evidence, the reviewing court is required to examine
the entire record, including contradictory evidence.” Brown v.
Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quotation and citation
omitted). Where an ALJ mischaracterizes the evidence or relies on
only the portions of the record that support a conclusion of “not
disabled,” a remand is necessary. See Correale–Englehart, 687 F.
Supp.2d 396, 439 (S.D.N.Y. 2010) (“[T]he ALJ cherry-picked some of
the
findings
of
the
[doctor]—notably
those
that
minimized
plaintiff’s psychological limitations and ignored others. This was
of course improper.”); Fuller v. Astrue, No. 09–cv–6279, 2010 WL
-12-
5072112, at *6 (W.D.N.Y. Dec. 6, 2010) (“[T]he ALJ cherry-picked
several
opinions
that
were
supportive
of
her
decision
and
disregarded the majority of the medical evidence in the record
including that of the treating physicians. This type of selective
analysis of the record is improper.”).
The Court acknowledges that, under the regulations, opinions
from social workers such as LMSW Mackey and LMSW Smith, are not
considered “acceptable medical sources,” they are nevertheless
“important and should be evaluated on key issues such as impairment
severity and functional effects.” 20 C.F .R. § 416.913, see also
SSR 06–03p, 2006 WL 2329939, at *3 (S.S.A. Aug. 9, 2006). Where, as
here, therapists and social workers have had the longest and most
in-depth treating relationships with Plaintiff, their opinions are
“not only helpful, but critically important,” Bergman v. Sullivan,
88–CV–513, 1989 WL 280264, at *3 (W.D.N.Y. Aug. 7, 1989) (holding
that treating social worker is “a non-medical source whose opinion
concerning the nature and degree of [claimant]’s impairment is not
only helpful, but critically important, since he is the only
treating source”); see also White v. Comm’r, 302 F. Supp.2d 170,
174–76 (W.D.N.Y. 2004) (reversing where the ALJ failed to give
appropriate weight to the claimant’s social worker, who had a
regular
treatment
relationship
with
the
claimant
and
diagnosis was consistent with the treating psychiatrist).
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whose
VI.
Conclusion
For the foregoing reasons, the Commissioner’s denial of SSI to
Plaintiff was marred by legal error and was not supported by
substantial evidence. Therefore, the Commissioner’s motion for
judgment on the pleadings (Dkt #13) is denied. Plaintiff’s motion
for judgment on the pleadings (Dkt #11) is granted to the extent
the Commissioner’s decision is reversed, and the matter is remanded
for further proceedings consistent with this Decision and Order. In
particular, the ALJ is directed to request a mental RFC assessment
from one of Plaintiff’s treating psychiatrists, to re-weigh the
opinions of Plaintiff’s treating therapists, and to reconsider
Plaintiff’s RFC in light of the entire record.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
April 11, 2016
Rochester, New York
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