Faison v. Colvin
Filing
19
DECISION AND ORDER granting 13 Plaintiff's Motion for Judgment on the Pleadings to the extent that the matter is remanded for further administrative proceedings consistent with this decision and order; denying 17 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/4/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSETTE C. FAISON,
Plaintiff,
No. 6:16-cv-06055(MAT)
DECISION AND ORDER
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
I.
Introduction
Josette
C.
Faison
(“Plaintiff”),
represented
by
counsel,
brings this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Commissioner of Social Security (“the Commissioner”) denying
her application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”). This Court has jurisdiction
over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
II.
Procedural Status
On
September
application
for
25,
DIB
2012,
and
Plaintiff
SSI,
alleging
protectively
disability
filed
an
beginning
January 11, 2012. After the claim was denied on May 4, 2013,
Plaintiff requested a hearing, which was held on June 24, 2014 in
New York, New York. Plaintiff appeared with her attorney and
testified before Administrative Law Judge Mark Solomon (“the ALJ”).
The ALJ issued an unfavorable decision on July 14, 2014. The
Appeals
Council
denied
Plaintiff’s
request
for
review
on
December 2, 2015, making the ALJ’s decision became the final
decision of the Commissioner. Plaintiff then timely commenced this
action.
Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. The Court adopts and incorporates by
reference herein the undisputed and comprehensive factual summaries
contained in the parties’ briefs. The Court will discuss the record
evidence further below, 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.
III. The ALJ’s Decision
The
ALJ
found
that
Plaintiff
meets
the
insured
status
requirements of the Act through June 30, 2014, and has not engaged
in substantial gainful activity since January 11, 2012, the alleged
onset date. The ALJ determined that Plaintiff has the following
severe impairments: history of headaches and history of depression.
After finding that Plaintiff did not meet or equal a listed
impairment, the ALJ assessed Plaintiff as having the residual
functional
capacity
(“RFC”)
for
light
work
with
certain
limitations: She must avoid working at unprotected height or with
hazardous machinery; she can remember, understand and carry out
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simple instructions, and make simple work-related decisions; she
can maintain attention and concentration for rote work; and she can
maintain a regular schedule and can perform a low stress job which
requires only occasional (very little to one-third of the workday)
close, interpersonal contact with the general public.
At step four, the ALJ found that Plaintiff is capable of
performing past relevant work as a cleaner, housekeeper, as this
work does not require the performance of work-related activities
precluded by her RFC. The ALJ did not perform an alternative step
five analysis, and entered a finding of not disabled.
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). 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 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
-3-
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)).
V.
Discussion
A.
Errors in the Severity Determination and Failure to Apply
the Special Technique
Plaintiff’s arguments for reversal and remand pertain to the
ALJ’s finding at step two that Plaintiff only has the “severe”
impairments of a history of headaches and a history of depression.
(T.16). Plaintiff argues that this finding ignores the diagnosis,
by consultative psychological examiner Dr. Christine Ransom, of
probable borderline intellectual functioning. (T.279). Plaintiff
contends that this condition needed to be included as a “severe”
impairment
by
the
ALJ
at
step
two.
According
to
Plaintiff,
Dr. Ransom’s diagnosis should have prompted the ALJ to develop the
record by requesting intelligence testing. The Commissioner argues
that any step two error was harmless because the ALJ found other
“severe”
impairments
and
proceeded
through
the
sequential
evaluation.
The Commissioner’s Regulations define a “severe” impairment as
one that “significantly limits” a claimant’s ability to perform
“basic
work
abilities
activities,”
and aptitudes
which
in
necessary
turn
to
do
are
most
defined
jobs,”
as
“the
such
as
“walking, standing, sitting, lifting, [etc.]”, “[c]apacities for
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seeing, hearing, and speaking,” and “[u]nderstanding, carrying out,
and remembering simple instructions.” 20 C.F.R. §§ 404.1521(b),
416.921(b). The Second Circuit has held that step two’s “severity”
requirement is de minimis, meant only to screen out the weakest of
claims. Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (“Since
the [Supreme] Court’s decision in [Bowen v.] Yuckert, [482 U.S. 137
(1987)] at least seven circuits have followed Justice O’Connor’s
lead and held that Step Two may do no more than screen out
de minimis claims.”) (collecting cases).
As Plaintiff observes, Courts in this Circuit frequently
remand for a renewed severity determination when an ALJ has made an
error at step two. See McHugh v. Astrue, No. 11-CV-00578 MAT, 2013
WL 4015093, at *9 (W.D.N.Y. Aug. 6, 2013) (“the ALJ erred at step
two in finding that [the claimant]’ s epilepsy was not a seizure
disorder and in ignoring [the claimant]’s migraine headaches. The
present record strongly suggests that [the claimant]’s seizure
disorder
and
migraine
headaches
are
‘severe
impairments’
for
purposes of step two which, as the Second Circuit has emphasized,
is not a demanding standard.”) (collecting cases); see also, e.g.,
Dailey v. Colvin, No. 1:14-CV-00841-MAT, 2017 WL 2569683, at *3
(W.D.N.Y. June 14, 2017); Taylor v. Astrue, No. 6:11–cv–588(GLS),
2012 WL 1415410, at *2 (N.D.N.Y. Apr. 24, 2012).
Cognitive
disorders
such
as
borderline
intellectual
functioning and learning disabilities “fall[ ] under the rubric of
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mental impairments[.]” Booker v. Astrue, No. 1:07-CV-646GLS, 2011
WL
3735808,
at
*3
(N.D.N.Y.
Aug.
24,
2011).
After
the
ALJ
determines that the claimant has a medically determinable mental
impairment, the ALJ must perform an analysis referred to in the
Regulations as the “special technique,” which involves rating the
degree of functional limitation in four categories: 1) activities
of
daily
living;
2)
social
functioning;
3)
concentration,
persistence and pace; and 4) episodes of decompensation. 20 C.F.R.
§§ 404.1520a(c), 416.920a(c).
The application of the “special
technique” is required at “the second and third steps of the five
step framework.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.
2008). The ALJ’s written decision must “reflect application of the
[special] technique, and . . . ‘include a specific finding as to
the degree of limitation in each of the [four] functional areas.’”
Id. (quoting 20 C.F.R. § 404.1520a(e)(2)); see also 20 C.F.R.
§ 416.920a(e)(2). Thus, it is not sufficient merely to discuss the
functional
limitations
in
the
context
of
claimant’s
residual
functional capacity. Failure to apply the special technique with
regard to a cognitive impairment such as borderline intellectual
functioning has been found to be reversible error. See, e.g.,
Kennerson v. Astrue, No. 10-CV-6591 MAT, 2012 WL 3204055, at *15
(W.D.N.Y.
Aug.
3,
2012)(finding
that
“[u]nless
the
ALJ
has
performed the [special technique] analysis, he or she has not
adequately
considered
the
entire
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record
when
determining
the
severity of the claimant’s impairments”; although ALJ did find that
claimant had a severe mental impairment (a learning disability), it
did not appear that the ALJ employed the special technique at the
second and third steps of the five-step sequential evaluation, as
required; this was an alternative basis for reversal) (citing Moore
v. Astrue, Civil No. 3:10–CV–0709 (CFD)(TPS), 2010 WL 4976756, at
*3 (D. Conn. Dec. 2, 2010)); Isaacs v. Astrue, No. 07-CV-257, 2009
WL 528252, at *10 (W.D.N.Y. Mar. 2, 2009) (reversing because the
ALJ’s “assessment fails to account for [claimant]’s significant
non-exertional limitations, including his borderline intellectual
functioning”) (citing Swope v. Barnhart, 436 F.3d 1023, 1025 (8th
Cir. 2006) (stating that “borderline intellectual functioning, if
supported by the record . . . is a significant non-exertional
impairment that must be considered by a vocational expert”)).
Here, there was sufficient evidence in the record to warrant
the ALJ to at least consider Dr. Ransom’s diagnosis of probable
borderline intellectual functioning at step two. During her mental
status
examination,
Dr.
Ransom
noted
that
Plaintiff’s
motor
behavior was “[l]ethargic, and her eye contact was “[d]owncast.”
(T.278). Her “[s]peech was slow and halting” with a “moderately
dysphoric” “quality of voice[.]” (Id.). Dr. Ransom observed that
her “[e]xpressive and receptive language skills were simplified but
adequate to complete the evaluation without difficulty.” (Id.).
Plaintiff’s attention and concentration were “moderately impaired”
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due to “depression and limited intellectual capacity.” (Id.).
Plaintiff’s remote memory was intact, but her immediate memory was
“moderately impaired.” (Id.). Dr. Ransom stated that Plaintiff’s
memory functions appeared to be impaired by depression and limited
intellectual
capacity.”
(T.279).
With
regard
to
cognitive
functioning, Dr. Ransom opined that Plaintiff’s “[i]ntellectual
functioning
appeared
to
be
in
the
borderline range”
“[g]eneral fund of information was somewhat limited.”
and
her
(Id.).
According to Dr. Ransom, Plaintiff “does not appear capable of
managing funds due to limited intellectual capacity” and “should
receive assistance in managing money.” (Id.). Dr. Ransom diagnosed
Plaintiff with “[m]ajor depressive disorder, currently moderate”
and “[p]robable borderline intellectual capacity.” (Id.).
Dr.
capacity
Ransom’s
is
finding
supported
by
of
probable
other
borderline intellectual
evidence
in
the
record.
For
instance, Plaintiff had been placed in special education classes in
school; she only completed ninth grade and did not obtain an
equivalency
diploma.
(T.31,
277).
Plaintiff’s
handwritten
submissions are not what one would expect from a ninth grader. For
instance, her request for a hearing reads as follows: “I fill [sic]
its [sic] not fare [sic] because [sic] hurt my self [sic] on my Job
and i [sic] ask permisson [sic] to go to hospatial [sic] Becouse
[sic] i [sic] was hurt [sic] am still hurt. I have a lot of
problems [and] pain all the time.” (T.9). The Court notes that in
-8-
the words “fare” and “of,” the letter “f” was written backwards.
(T.9).
Notwithstanding this corroborative evidence of Plaintiff’s
limited
Dr.
intellectual
Ransom’s
capabilities,
diagnosis
of
the
probable
ALJ
did
not
borderline
include
intellectual
functioning at step two. Furthermore, the ALJ did not perform the
special technique as required by the Regulations and clear Second
Circuit precedent. The Commissioner argues that any error was
harmless because the ALJ proceeded with the remainder of the
sequential evaluation process and assessed limitations in the RFC
that fully accounted for Plaintiff’s mental functioning. The Court
disagrees.
Although
the
Second
Circuit
in
Kohler
left
open
the
possibility that an ALJ’s failure to adhere to the regulation's
special technique could be harmless, under the facts presented by
the claimant in that case, remand was necessary because the ALJ’s
failure
to
adhere
to
the
Regulations
frustrated
meaningful
appellate review. Kohler, 546 F.3d at 267. The Circuit pointed to
two particular
areas
of
concern.
First, the
panel
could
not
determine whether there was substantial evidence for the ALJ’s
decision
in
the
absence
of
specific
findings
regarding
the
claimant’s degree of limitation in the four functional areas by
which disabling mental conditions are rated. Id. at 267–68. Second,
the ALJ in Kohler focused on the claimant’s RFC and not the four
-9-
functional
areas
required
by
the
Regulations
in
20
C.F.R.
§§ 404.1520a(c) and 416.920a(c). This led the Circuit to conclude
it was “not clear whether the ALJ adequately considered the entire
record when determining the severity of Kohler’s impairment, or
whether he might have found it to equal the severity of a listed
condition
had
he
followed
the
regulations
and
made
specific
findings regarding Kohler’s degree of limitation in each functional
area. It also [was] not clear whether the ALJ would have arrived at
the same conclusion regarding Kohler’s residual functional capacity
to perform work had he adhered to the regulations.” Id. at 268.
Such
is
the
case
here.
Indeed,
especially
in
the
realm
of
borderline intellectual functioning and learning disabilities,
courts have found the harmless error doctrine inapplicable. See,
e.g., Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (failure
of ALJ to analyze disability claimant’s borderline intellectual
functioning using the special technique was in error even where
other impairments were found to be severe at step two); Howard v.
Comm’r of Soc. Sec., 203 F. Supp. 3d 282, 298 (W.D.N.Y. 2016)
(reversing where ALJ did not address claimant’s alleged borderline
intellectual functioning impairment at step two or step three of
the disability analysis, and did not apply special technique to
borderline intellectual functioning; court could not say that the
ALJ properly assessed a combination of claimant’s impairments,
severe and non-severe, during the remaining steps) (citing Booker,
-10-
2011 WL 3735808, at *4 (The “ALJ’s other findings [must] show that
the proper legal standards were applied and that all of [the
claimant’s] impairments were properly considered at all of the
subsequent steps.”)).
Although the ALJ did, as part of his step three analysis,
perform the second step1 of the special technique, this assessment
was solely in relation to whether Plaintiff’s depression met the
criteria for Listing 12.04 (Affective Disorders). This assessment
arguably could draw from the same sources in the record and be
similar to what the ALJ would have found, had he actually performed
the
special
technique
for
Plaintiff’s
probable
borderline
intellectual functioning. However, this would require the Court to
engage in impermissible speculation and post hoc rationalizations
for the ALJ’s decision. See Snell v. Apfel, 177 F.3d 128, 134
(2d Cir. 1999) (“A reviewing court ‘may not accept appellate
counsel’s post hoc rationalizations for agency action.’”) (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)).
1
The special technique has two steps. It “requires a reviewing authority to
determine first whether the claimant has a ‘medically determinable mental
impairment.’” Kohler, 546 F.3d at 265–66 (quoting 20 C.F.R. § 404.1520a(b)(1));
see also 20 C.F.R. § 416.1520a(b)(1). “If the claimant is found to have such an
impairment, the reviewing authority must ‘rate the degree of functional
limitation resulting from the impairment(s) in accordance with paragraph (c),’
. . . which specifies four broad functional areas.” Id. at 266 (quoting 20 C.F.R.
§ 404.1520a(b)(2)); see also 20 C.F.R. § 416.1520a(b)(2). These areas are as
follows:
“(1)
activities
of
daily
living;
(2)
social
functioning;
(3) concentration, persistence or pace; and (4) episodes of decompensation.” Id.
(citing 20 C.F.R. § 404.1520a(c)(3)); see also 20 C.F.R § 416.920a (c)(3).
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The Court cannot say that the ALJ’s errors at step two and
three were harmless, and therefore remand is required. See, e.g.,
Howard, 203 F. Supp.3d at 298 (where ALJ did not address claimant’s
alleged borderline intellectual functioning impairment at step two
or step three, court could not say that ALJ properly assessed a
combination
of
claimant’s
impairments,
severe
and
non-severe,
during the remaining steps) (citing Booker, 2011 WL 3735808, at *4
(“[The] ALJ’s other findings [must] show that the proper legal
standards were applied and that all of [the claimant’s] impairments
were properly considered at all of the subsequent steps.”)).
B.
Failure to Develop the
Intellectual Functioning
Record
Regarding
Plaintiff’s
Development of the record is required to more precisely assess
Plaintiff’s intellectual functioning. The Court recognizes that
Dr.
Ransom’s
diagnosis
regarding
Plaintiff’s
borderline
intellectual functioning is qualified by the term “probable.”
However, that does not give the ALJ license to disregard it. “An
ALJ has the discretion to order a consultative intelligence exam to
develop the record when the ALJ determines that he or she cannot
get the information needed to form a conclusion based solely on the
medical
sources
within
the
record.”
Dufresne
v.
Astrue,
No. 5:12-CV-00049 MAD, 2013 WL 1296376, at *7 (N.D.N.Y. Mar. 8,
2013), report and recommendation adopted, No. 5:12-CV-0049 MAD/TWD,
2013
§§
WL
1289759
404.1519a(a),
(N.D.N.Y.
Mar.
416.919a).
In
27,
the
-12-
2013
(citing
previous
20
section
C.F.R.
of
this
opinion, the Court outlined some of the evidence in the record
supporting
Dr.
Ransom’s
diagnosis
of
probable
borderline
intellectual functioning. The Commissioner has pointed to other
items of evidence in the record tending to support the ALJ’s
finding that Plaintiff can perform simple, rote work. However, the
Commissioner’s
arguments
in
this
regard
amount
to
post-hoc
rationalizations for the ALJ’s decision; the ALJ did not rely on
this
evidence
or
articulate
such
reasoning
at
the
time
his
analysis. Given the evidence already in the record concerning
Plaintiff’s
cognitive
impairments,
Dr.
Ransom’s
diagnosis
of
probable borderline intellectual functioning should have prompted
the
ALJ
to
develop
the
record
by
ordering
a
consultative
examination and/or intelligence testing. See Dufresne v. Astrue,
2013 WL 1296376, at *8 (“Since the record contains evidence of a
cognitive
impairment,
with
conflicting
evidence
as
to
his
abilities, the ALJ should have ordered a consultative intelligence
test in order to clarify [the claimant]’s intelligence level and
properly render a decision on whether [the claimant]’s mental
impairment is severe.”). On remand, the ALJ is directed to have
Plaintiff undergo a consultative evaluation and/or intelligence
testing.
VI.
Conclusion
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s determination was erroneous as a matter of law, and
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that remand is required. Defendant’s Motion for Judgment on the
Pleadings is denied, and Plaintiff’s Motion for Judgment on the
Pleadings is granted to the extent that the matter is remanded for
further administrative proceedings consistent with this decision.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
August 4, 2017
Rochester, New York
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