Carter v. Colvin

Filing 16

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 13 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/17/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL CARTER,
Plaintiff,
-vs-

No. 6:15-CV-06670 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Michael Carter (“plaintiff”) brings

this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of 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). 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.
granted

to

For the reasons discussed below, plaintiff’s motion is
the

extent

that

this

matter

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.

Procedural History
The record reveals that in January 2012, plaintiff (d/o/b July

28, 1989) applied for SSI, alleging disability beginning September
1, 1997. After his application was denied, plaintiff requested a
hearing, which was held before administrative law judge Brian Kane

(“the ALJ”) on May 16, 2014. On June 11, 2014, the ALJ issued an
unfavorable decision. The Appeals Council denied review of that
decision and this timely action followed.
III. Summary of the Evidence
The record, which is relatively sparse, includes treatment
notes from plaintiff’s treating psychiatrist, Dr. Prakash Reddy,
treating

therapist

Denise

Lampo,

MSW,

and

treating

therapist

Kathleen Simpson. The record also contains records of a consulting
examination performed by state agency psychologist Dr. Yu Ying Lin
and opinions from state agency reviewing psychologist Dr. E. Kamin.
Plaintiff was referred to Catholic Family Center (“CFS”) by
New York’s Consumer Directed Personal Assistance Program (“CD
Program”) for a determination of the appropriateness of outpatient
treatment. He underwent an initial evaluation on February 3, 2012
with Ms. Lampo, at which he reported frequent mood swings, a
history of

attention

deficit

hyperactivity

disorder (“ADHD”),

cannabis dependency, and a fear of reporting his symptoms due to
the stigma associated with mental health conditions. Plaintiff
reported frequent hallucinations, including hearing voices and
“jail bells” in his head. Ms. Lampo opined that he met the
diagnostic criteria for bipolar disorder, not otherwise specified
(“NOS”) and possibly shizoaffective disorder. Ms. Lampo referred
plaintiff to Dr. Reddy for psychiatric treatment and medication
monitoring.

2

On initial mental status examination (“MSE”) on February 23,
2012 with Dr. Reddy, plaintiff presented as “hypertalkative,”
reported

visual and auditory hallucinations and paranoia, and

demonstrated a depressed, irritable, and angry affect. T. 197.
Dr. Reddy diagnosed him with bipolar disorder, NOS and prescribed
plaintiff

Seroquel

(an

antipsychotic

often

used

to

treat

schizophrenia, bipolar disorder, and depression).
In March 2012, plaintiff reported to Dr. Reddy that Seroquel
had “not been helping his mood swings and anger problems” and made
him excessively sleepy. T. 205. Dr. Reddy discontinued Seroquel and
prescribed Risperdal, another antipsychotic medication. In March
2012, plaintiff reported to his therapist Kathleen Simpson that his
mother and sister both carried diagnoses of bipolar disorder.
Ms. Simpson recorded that plaintiff had a depressive affect to a
“notable” degree. T. 207. In April 2012, plaintiff reported no
adverse side effects from his medications; Dr. Reddy increased his
Risperdal dosage. A July 2012 treatment note signed by Ms. Simpson
indicated that plaintiff’s treatment plan was reviewed and goals
included “focus[ing] thoughts on reality” and sustaining recovery
from substance abuse. T. 200.
Plaintiff was referred by the CD Program to personalized
recovery-oriented services (“PROS”), and on August 27, 2012, social
worker Kelly Murrell evaluated him for this program. Plaintiff
reported that he had not seen Dr. Reddy in several months and

3

therefore did not have medication. He also reported continued
auditory hallucinations and depression. He was scheduled to attend
orientation for a GED program, and Ms. Murrell noted that this
would be his third attempt at a GED since dropping out of school in
the ninth grade.
On April 26, 2012, Dr. Yu-Ying Lin completed a consulting
psychiatric
Plaintiff

evaluation

reported

at

the

completing

request
the

of

eighth

the

state
in

grade

agency.
special

a

education program for learning disability and ADHD. Plaintiff
reported both manic and depressive symptoms as well as continued
visual

and

auditory

hallucinations

and

paranoia.

On

MSE,

plaintiff’s “[m]anner of relating was poor”; motor behavior was
lethargic;

affect

was

dysphoric

and

mood

dysthymic;

he

was

“oriented to person, but not place and not date”; attention and
concentration were “moderately impaired due to limited intellectual
functioning and emotional distress [due] to current psychiatric
disorder”;

recent

and

remote

memory

skills

were

impaired;

intellectual functioning appeared to be below average; and insight
and judgment were poor. T. 158-60. Plaintiff reported that he did
not perform any cooking, cleaning, or laundry because he made
mistakes or did not know how; he did not shop because he made
mistakes or “[got] into altercations with others”; he did not drive
because

he

had

no

license;

and

4

he

did

not

take

public

transportation due to paranoia. He stated that his mother and
girlfriend helped him as needed with daily activities. T. 160.
Dr.

Lin

diagnosed

plaintiff

with

bipolar

disorder

with

psychotic features and generalized anxiety disorder. In Dr. Lin’s
opinion, plaintiff could follow and understand simple directions
and instructions, perform simple tasks with supervision, maintain
a regular schedule, and learn new tasks. However, in Dr. Lin’s
opinion,

plaintiff

could

not

maintain

concentration,

perform

complex tasks independently, make appropriate decisions, relate
adequately

with

others,

or

appropriately

deal

with

stress.

According to Dr. Lin, these difficulties were “caused by psychotic
symptoms and lack of motivation.” Id.
Dr. Kamin reviewed plaintiff’s medical record at the request
of the state agency and completed a psychiatric review technique
(“PRT”)

form

and

mental

assessment.

According

limited

several

in

to

areas

residual
Dr.

functional

Kamin,

involving

capacity

plaintiff

was

understanding

(“RFC”)

moderately

and

memory,

sustained concentration and persistence, social interaction, and
adaptation. Dr. Kamin opined that plaintiff had overall mild
restrictions in activities of daily living (“ADLs”); moderate
restrictions in maintaining social functioning and maintaining
concentration, persistence, or pace; and no repeated episodes of
deterioration of extended duration.

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IV.

ALJ’s Decision
At step one of the five-step sequential evaluation, see

20 C.F.R. § 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since his application date,
January 11, 2012. At step two, the ALJ found that plaintiff
suffered from the severe impairments of bipolar disorder and ADHD.
At step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled

the

severity

of

any

listed

impairment.

In

assessing

plaintiff’s mental limitations, the ALJ found that plaintiff had no
limitations in ADLs; mild difficulties in social functioning;
moderate difficulties in concentration, persistence, or pace; and
no episodes of decompensation.
Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform a full range of work at all
exertional levels but with the following nonexertional limitations:
he

was

“limited

to

unskilled

work

at

a

specific

vocational

preparation [SVP] level of 3 or below.” T. 23 (internal quotation
marks omitted). At step five, the ALJ found that considering
plaintiff’s age, education, work experience, and RFC, jobs existed
in significant numbers in the national economy which plaintiff
could perform. Accordingly, the ALJ found that plaintiff was not
disabled.

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V.

Discussion
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

RFC Finding

Plaintiff argues that the ALJ’s RFC finding is unsupported by
substantial evidence, contending that the ALJ failed to properly
weigh the

psychiatric

medical opinion

evidence. Specifically,

plaintiff argues that the ALJ failed to properly weigh Dr. Lin’s
consulting

opinion,

and

failed

to

even

consider

Dr.

Kemin’s

reviewing opinion. For the reasons that follow, the Court finds
plaintiff’s arguments persuasive.
1.

Dr. Lin’s Consulting Examining Opinion

Dr. Lin’s consulting examining opinion is the only assessment
by an examining source regarding plaintiff’s level of work-related
psychiatric functioning. The ALJ gave little weight to Dr. Lin’s
opinion, however, because he found that it was “based on internal
inconsistencies as well as inconsistencies with treatment notes
from the treating sources that report orientation and attention
7

were fine.” T. 24. As plaintiff points out, the ALJ failed to
explain how Dr. Lin’s opinion was internally inconsistent, and upon
the Court’s review the opinion itself suffers from no inherent
inconsistency.

Moreover,

while

it

is

true

that

the

sparse

psychological treatment notes from plaintiff’s treating sources do
not note difficulties with orientation upon MSE, this fact alone
does not discredit Dr. Lin’s qualified assessment that plaintiff
suffered from orientation difficulties at the time she examined
him.
The ALJ also failed to properly assess Dr. Lin’s consulting
examining opinion. Although the ALJ is not required to provide “the
same ‘good reasons’ . . . for not crediting a consulting doctor
with sufficient weight” as a treating physician, Trail ex rel.
Trial v. Colvin, 2015 WL 224753, *9 (N.D.N.Y. Jan. 15, 2015), the
ALJ

is

always

reviewing
opinion.

required

court
See,

to

provide

to

understand

e.g.,

Sickles

his

v.

reasons

sufficient

rationale

Colvin,

2014

in
WL

for

a

weighing

the

795978,

*12

(N.D.N.Y. Feb. 27, 2014) (citing Mongeur v. Heckler, 722 F.2d 1033,
1040 (2d Cir. 1983)). Moreover, the ALJ may not “substitute [his]
own expertise or view for a competent medical opinion.” Stokes,
2012 WL 695856, *12 (citing Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999)).
In this case, the ALJ improperly substituted his own lay
judgment for the medical expertise of Drs. Lin and Kemin. As

8

plaintiff points out, this error is apparent from the decision
because the ALJ fails to explain what medical evidence, if any,
supported the specific functional limitations assigned by the ALJ
in the RFC finding. Accordingly, the RFC finding is, as plaintiff
argues, unsupported by substantial evidence and this case is
therefore remanded for further proceedings consistent with this
Decision and Order. See Cestare v. Colvin, 2016 WL 836082, *4
(W.D.N.Y. Mar. 4, 2016) (remanding where ALJ “did not adequately
explain how the evidence of record supported her RFC findings”). On
remand, the ALJ is directed to follow the applicable authority, see
20 C.F.R. § 416.927(f), SSR 96-6p, in assessing Dr. Lin’s opinion
and in reaching his RFC finding.
2.

Dr. Kemin’s Reviewing Opinion

The ALJ failed to even discuss Dr. Kemin’s reviewing opinions
contained within the PRT and mental RFC. The ALJ has a clear duty
to

discuss,

and

explicitly

weigh,

opinions

of

state

agency

consultants, whether they examined the plaintiff or reviewed the
medical record. “Findings of fact made by State agency medical and
psychological consultants . . . regarding the nature and severity
of an individual's impairment(s) must be treated as expert opinion
evidence of nonexamining sources [and the ALJ] may not ignore these
opinions and must explain the weight given to these opinions in
their decisions.” SSR 96-6p; see also Stokes v. Astrue, 2012 WL
695856, *12 (N.D.N.Y. Mar. 1, 2012) (“While the ALJ was not

9

required

to

afford

controlling

weight

to

[a

reviewing

psychologist’s] opinion, the ALJ is not permitted to substitute her
own expertise or view for a competent medical opinion.”); Babcock
v. Barnhart, 412 F. Supp. 2d 274, 281 (W.D.N.Y. 2006) (remanding
where “the ALJ did not explain whether or how he considered certain
medical source opinions”).
Here, the ALJ’s failure to discuss Dr. Kemin’s opinion was not
harmless

error

because

Dr.

Kemin

assessed

plaintiff

with

significantly more restrictive limitations than those reflected in
the RFC; therefore, an explicit weighing of the opinion could have
affected the outcome of plaintiff’s disability determination. Cf.
Lynch v. Astrue, 2008 WL 3413899, *5 (W.D.N.Y. Aug. 8, 2008)
(finding that ALJ’s failure to refer to treating physician’s report
was

harmless

error

because

consideration

of

the

information

contained in the reports would not have changed the outcome of the
ALJ's determination). Accordingly, on remand, the ALJ is directed
to discuss and explain the weight given to Dr. Kemin’s opinion.
B.

Vocational Expert Testimony

Plaintiff argues that the vocational expert’s (“VE”) testimony
did not support the ALJ’s step five finding. The ALJ asked the VE
a hypothetical question based on an individual with the RFC found
by the ALJ in his decision. The VE’s testimony was therefore
necessarily dependent on the RFC finding. Because the Court has
found that the RFC finding was unsupported by substantial evidence,

10

the VE’s testimony was likewise based on insufficient evidence.
Accordingly, on remand, the ALJ is directed to obtain new VE
testimony which considers the RFC found by the ALJ on remand.
VII. Conclusion
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings (Doc. 13) is denied and plaintiff’s
motion (Doc. 9) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order. The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 17, 2017
Rochester, New York.

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