Timmons v. Colvin

Filing 20

DECISION AND ORDER granting 13 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; denying 18 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARCEL VALERIAN TIMMONS,
Plaintiff,
-vs-

No. 6:16-CV-06314 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, plaintiff Marcel Valerian Timmons

(“plaintiff”) brings this action pursuant to the Social Security
Act (the “Act”), seeking review of the final decision of defendant
the Acting Commissioner of Social Security1 (the “Commissioner” or
“defendant”) 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. For the reasons
discussed below, plaintiff’s motion is granted to the extent that
this

case

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

Procedural History
Plaintiff protectively filed an application for SSI on August

15, 2012, which was denied.
77, 150-55.

Administrative Transcript (“T.”) 72-

At plaintiff’s request, a hearing was held before

administrative law judge (“ALJ”) Horetensia Haaversen on April 16,
2014.

T. 35-41.

The ALJ adjourned the hearing to allow plaintiff

an opportunity to obtain a representative.
inquired
additional

about

additional

consultative

medical

T. 36-37.

records

examinations.

T.

and

She also

ordered

38-39.

two

Plaintiff

appeared before the ALJ for a second time on July 16, 2014, and
indicated that he had been unable to obtain an attorney.
Plaintiff

agreed

representation.

Id.

to

proceed

with

the

hearing

T. 45.
without

In a decision dated December 19, 2014, ALJ

Haaversen found that plaintiff was not disabled as defined in the
Act and denied his claim.

T. 5-25.

On March 21, 2016, the

Appeals Council issued an order denying plaintiff’s request for
review, thereby rendering the ALJ’s decision the Commissioner’s
final determination.

T. 1-4.

Plaintiff subsequently filed this

action.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity since August 15,
2012, the alleged onset date.

T. 10.

2

At step two, the ALJ found

that

plaintiff

suffered

from

the

severe

impairments

of

polysubstance abuse including continuous drinking behavior and
marijuana abuse, alcoholic gastritis, seizures secondary to alcohol
withdrawal, unspecified depressive disorder, and status-post left
knee

surgery.

T.

11.

At

step

three,

the

ALJ

found

that

plaintiff’s impairments, including the substance use disorders, met
sections 12.04 and 12.09 of 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d)).

Id.

Specifically, the ALJ determined that

plaintiff had continuous periods of decompensation during which he
experienced an altered mental state.
“In

1996,

Congress

enacted

T. 11-12.
the

Contract

with

America

Advancement Act . . .which amended the Act by providing that [a]n
individual shall not be considered ... disabled ... if alcoholism
or drug addiction would ... be a contributing factor material to
the Commissioner’s determination that the individual is disabled.”
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012)
(internal

quotations

omitted).

Accordingly,

the

ALJ

next

considered whether, if plaintiff stopped his substance abuse, the
remaining limitations would cause more than a minimal impact on his
ability to perform basic work activities, and concluded that they
would.

T. 13.

However, the ALJ also concluded that if plaintiff

stopped his substance abuse, he would not have an impairment or
combination of impairments that would meet or medically equal one

3

of the listed impairments set forth in 20 C.F.R. § 404, Subpart P,
Appendix 1.

T. 14.

Before proceeding to step four, the ALJ determined that, if
plaintiff stopped his substance abuse and considering all of
plaintiff’s impairments, plaintiff retained the RFC to perform
mediume work as defined 20 CFR 416.967(c) “except that he can
occasionally kneel, and climb ladders, ropes, and scaffolds.”
T. 15.

The ALJ further held that plaintiff would be unable to

drive an automobile for employment; is precluded from working at
heights; should avoid concentrated exposure to hazards; is able to
follow and understand simple directions and instructions and can
perform simple tasks independently; is able to maintain attention
and concentration, make appropriate workplace decisions, and relate
adequately with others.

Id.

At step four, the ALJ found that if plaintiff stopped his
substance abuse, he would still be unable to perform any past
relevant work.

T. 18.

At step five, the ALJ concluded that,

considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff could perform if he stopped his substance
abuse.
IV.

Id.

Accordingly, the ALJ found plaintiff not disabled.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual

4

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.

Evaluation of “Rule Out Mild Neurocognitive Disorder due
to Seizure or Stroke” Diagnosis

Plaintiff first argues that the ALJ improperly failed to
properly evaluate consultative psychiatrist Adam Brownfeld, Ph.D.’s
diagnosis of “[r]ule out mild neurocognitive disorder due to
seizures and stroke.”

See T. 407.

In the alternative, plaintiff

argues that the ALJ had a duty to develop the record with respect
to this issue.

For the reasons discussed below, the Court agrees

that the ALJ failed to properly develop the record and that,
accordingly, remand is required.
The ALJ sent plaintiff to Dr. Brownfeld for a psychiatric
examination on May 7, 2014, following his initial appearance before
her.
use

T. 404-407.
to

Dr.

Plaintiff reported active marijuana and alcohol

Brownfeld.

T.

405.

On

physical

examination,

plaintiff’s thought processes were coherent and goal directed, his
speech was fluent and clear, and his expressive and receptive
language were adequate. T. 405-406.

Plaintiff’s attention and

concentration skills were impaired, as were his recent and remote
memory

skills.

Id.

Dr.

Brownfeld
5

estimated

plaintiff’s

intellectual functioning as below average and noted that his
insight and judgment were good.

T. 406.

Dr. Brownfeld opined that

there was no evidence of limitation in following and understanding
simple directions and instructions and performing simple tasks
independently.
maintaining

Id.

Dr. Brownfeld found mild limitations in

attention

and

concentration,

making

decisions, and relating adequately with others.

appropriate

Id.

He found

moderate limitations in maintaining a regular schedule and learning
new tasks and marked limitations in performing complex tasks
independently.

Id.

Dr. Brownfeld further opined that plaintiff’s

psychiatric and cognitive problems did not appear to be significant
enough to interfere with plaintiff’s ability to function on a daily
basis.

Id.

unspecified

As diagnoses, Dr. Brownfeld listed cannabis abuse,
depressive

disorder,

and

“[r]ule

neurocognitive disorder due to seizures and stroke.”

out

mild

T. 406-407.

In her decision, the ALJ did not find that “[r]ule out mild
neurocognitive disorder due to seizures and stroke” was a severe
impairment.

While

plaintiff

argues

that

necessitating remand, the Court disagrees.

this

was

an

error

“In medicine, the

phrase ‘rule out’•means to eliminate or exclude something from
consideration. It does not constitute a diagnosis.”

Merancy v.

Astrue, 2012 WL 3727262, at *7 (D. Conn. May 3, 2012) (collecting
cases); see also Jackson v. Berryhill, 2017 WL 2399459, at *2
(2d Cir. June 2, 2017) (rule out diagnoses are “possible diagnoses
that [have] not been ruled out, pending further evaluation”);
Santiago v. Colvin, 2014 WL 718424, at *13 (S.D.N.Y. Feb. 25,
6

2014), report and recommendation adopted, 2014 WL 1092967 (S.D.N.Y.
Mar. 17, 2014) (“In medicine, the phrase ‘rule out’•indicates a
need to eliminate or exclude a diagnosis from consideration, but it
does not constitute a diagnosis itself.”); Rivera v. Colvin,
No. 15-CV-6048 CJS, 2016 WL 5858931, at *4 (W.D.N.Y. Oct. 7, 2016)
(a finding of “rule out mild mental retardation” meant that “such
a

diagnosis

was

possible

and

had

not

yet

been

ruled

out”).

Dr. Brownfeld’s listing of “rule out mild neurocognitive disorder
due to seizures and stroke” thus was not an affirmative diagnosis
of neurocognitive disorder, and the ALJ was not required to treat
it as such.
However, the Court agrees with plaintiff that the ALJ had a
duty to further develop the record with regard to the possibility
that plaintiff suffered from neurocognitive disorder. “[I]t is the
well-established rule in our circuit that the social security ALJ,
unlike a judge in a trial, must on behalf of all claimants ...
affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceeding.” Moran v. Astrue,
569 F.3d 108, 112 (2d Cir. 2009) (internal quotation omitted).
This duty is particularly relevant where, as here, the claimant
acts pro se and suffers from a mental impairment.

Id.

Here, Dr. Brownfeld’s opinion affirmatively put the ALJ on
notice that plaintiff potentially suffered from neurocognitive
disorder as a result of previous seizures or strokes.

Moreover,

and as plaintiff points out, CT scans taken in September 2013 and
July 2014 in fact showed evidence of a previous stroke.

7

See

T. 484, 525.

There was therefore at least some evidence to support

Dr. Brownfeld’s identification of neurocognitive disorder as a
possible diagnosis.

Where there is insufficient evidence in the

record to determine whether or not an impairment exists, the ALJ
has an affirmative obligation to develop the record. See Jarvis v.
Colvin, 2016 WL 4148352, at *6 (N.D.N.Y. Aug. 4, 2016).

Here, the

ALJ had many options available to her to develop the record,
including engaging a medical expert to review plaintiff’s CT scans
and determine whether they supported a diagnosis of neurocognitive
disorder, or re-contacting Dr. Brownfeld to obtain additional
information.

She did not do so.

The Court agrees with plaintiff

that, under the circumstances of this case, the ALJ’s failure to
further develop the record necessitates remand.
B.

Full and Fair Hearing

Plaintiff also argues that the ALJ did not properly question
plaintiff

regarding

his

mental

impairments

and

improperly

questioned him regarding his alleged intoxication at a prior
hearing.

Because the Court has already determined that remand is

necessary, it need not and does not reach this issue.

On remand,

the ALJ should ensure that plaintiff is given the opportunity to
testify regarding all his claimed impairments.
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings motion (Docket No. 13) is granted to the extent that
this

matter

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order.
8

The Commissioner’s motion for judgment on the pleadings (Docket No.
18) is denied.

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:

June 29, 2017
Rochester, New York.

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