Keller v. Colvin

Filing 22

DECISION & ORDER The Commissioner's motion for judgment on the pleadings #20 is denied, and Keller's motion for judgment on the pleadings #11 is granted to the extent that the Commissioners decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 9/18/2017. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
JAMES MARK KELLER,
DECISION & ORDER
Plaintiff,
16-CV-6399P
v.
CAROLYN W. COLVIN,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________

PRELIMINARY STATEMENT
Plaintiff James Mark Keller (“Keller”) brings this action pursuant to Section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision
of the Commissioner of Social Security (the “Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), the parties have
consented to the disposition of this case by a United States magistrate judge. (Docket # 15).
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 11, 20). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.

1

On January 23, 2017, after this appeal was filed, Nancy A. Berryhill became Acting Commissioner of
Social Security.

BACKGROUND
I.

Procedural Background
Keller protectively filed for DIB alleging disability beginning on May 12, 2012,

as a result of anxiety and chronic cough. (Tr. 250, 254).2 On March 1, 2013, the Social Security
Administration (“SSA”) denied Keller’s claim for benefits, finding that he was not disabled.3
(Tr. 116). Keller requested and was granted a hearing before Administrative Law Judge John R.
Allen (the “ALJ”). (Tr. 127-28, 183-87). The ALJ conducted a hearing on December 2, 2014.
(Tr. 72-104). In a decision dated January 21, 2015, the ALJ found that Keller was not disabled
and was not entitled to benefits. (Tr. 42-60).
On April 7, 2016, the Appeals Council denied Keller’s request for review of the
ALJ’s decision. (Tr. 1-5). Keller commenced this action on June 10, 2016, seeking review of
the Commissioner’s decision. (Docket # 1).

II.

Relevant Medical Evidence4
A.

Treatment Records
1.

Rochester Mental Health Center

Treatment notes suggest that Keller was referred to and first attended an
appointment at Rochester Mental Health Center (“RMHC”) on July 13, 1998, for continued
psychiatric care after his discharge from a partial hospitalization program. (Tr. 424-25). Keller
met with Jay Hong (“Hong”), CSW, and reported symptoms of anxiety and depression. (Id.).
He reported that he had lost his job as a driver for developmentally disabled clients the previous
2

The administrative transcript shall be referred to as “Tr. __.”

3

Keller’s previous claim for benefits was denied on October 15, 1999. (Tr. 250).

4

Those portions of the treatment records that are relevant to this decision are recounted herein.

2

year and had been unable to obtain employment since his dismissal. (Id.). In the course of
attempting to obtain career service assistance, he was referred for mental health treatment. (Id.).
He briefly sought treatment at Family Services, but that organization referred him to the RMHC
Partial Hospitalization Program. (Id.). At the time of the appointment with RMHC, Keller was
forty-one years old and lived by himself. (Id.).
Keller reported that his father was an alcoholic and had been a long-time resident
of the Rochester Psychiatric Center. (Id.). His brother had been diagnosed with schizophrenia
and received inpatient care. (Id.). Keller reported that he had received a bachelor’s degree and
had previous employment history as a driver for developmentally disabled persons and a city
school bus driver. (Id.). Keller reported that he attended an Adult Children of Alcoholics
(“ACOA”) group and received support from his mother. (Id.). He reported that he was a
classical musician and enjoyed playing the piano. (Id.).
Upon examination, Keller presented as well-groomed, casually dressed, alert,
fully oriented, with coherent thought form, general speech content, mildly depressed mood, and
flat affect, and he related in a detached manner. (Id.). Hong opined that Keller had an
idiosyncratic style of relating to others, which likely resulted in a lack of social support. (Id.).
He assessed that Keller had a mental illness that resulted in functional deficits that likely would
continue for a prolonged period in the areas of living, working, socializing, and learning. (Id.).
On July 21, 2011, Keller met with M. Saleem Ismail (“Ismail”), MD. (Tr. 614).
During the appointment, Keller reported that he was doing “fine,” was sleeping and eating well,
and was connected to groups, his mother and his aunt. (Id.). He reported that he used Trazadone
rarely to assist with sleep. (Id.). Upon examination, Ismail noted that Keller was casually
dressed, with a linear thought process, fine mood, blunt affect, full orientation, fair memory,

3

good insight and judgment, and a fair fund of knowledge. (Id.). Keller denied that he was
currently suffering or had ever suffered from hallucinations or delusions. (Id.).
Ismail noted that Keller suffered from depressive symptoms and an unclear
history of psychosis, although he had been taking antipsychotic medication for several years.
(Id.). He assessed that Keller’s functioning was fair and without disabling symptoms or
hospitalizations. (Id.). Ismail diagnosed Keller with depressive disorder, not otherwise
specified, and assessed a Global Assessment of Functioning (“GAF”) of 60. (Id.). Ismail
suggested lowering Keller’s Geodon dosage. (Id.).
Keller returned for an appointment with Ismail on November 10, 2011. (Tr. 612).
During the appointment, Keller complained of dizziness and a chronic cough, for which he was
receiving treatment. (Id.). He indicated that his sleep and appetite were good, denied excessive
fatigue or depression, and reported that he had been working on his aunt’s piano. (Id.). Upon
examination, Ismail noted that Keller avoided eye contact, demonstrated partial insight and good
judgment, and denied hallucinations or delusions. (Id.). Ismail noted that Keller suffered from
mood disorder and possibly a personality disorder that resulted in sexual and interpersonal
difficulties. (Id.). He continued Keller’s current medication regimen. (Id.).
On January 30, 2012, Keller met with Shannon E. Mackey (“Mackey”), LMSW.
(Tr. 610). Mackey indicated that she had recently taken over Keller’s case and planned to meet
with Keller every twelve weeks to discuss his symptoms and life stressors. (Id.). Keller reported
that he had been stable for some time and was compliant with his medications. (Id.). Keller
reported experiencing difficulty at work because a coworker insisted on playing music with
profanity, which caused Keller to become angry, experience headaches, and take out his
frustration on the residents. (Id.). Keller reported that he enjoyed yoga and found it to be a

4

useful coping skill. (Id.). Upon examination, Mackey noted that Keller presented a guarded
attitude, constricted affect, and anxious mood. (Id.). Mackey indicated that Keller appeared
anxious and preoccupied, but Keller denied feeling anxious. (Id.).
On March 19, 2012, Keller attended an appointment with Douglas Landy
(“Landy”), MD. (Tr. 608-09). At the time of the appointment, Keller was taking Geodon, Zoloft
and Trazodone. (Id.). Keller reported that he was experiencing “bad thoughts,” including
feelings that he “should hate somebody.” (Id.). Landy suggested that Keller also appeared to
experience auditory hallucinations based upon Keller’s reports that his coworker insisted on
playing music containing a man’s monotone voice speaking “every conceivable curse word and
. . . racial epithets and various other nasty phrases.” (Id.). Landy concluded that Keller might be
experiencing hallucinations. (Id.). Keller indicated that he was not certain how long he had been
experiencing problems, but Landy noted that in July 2011 Keller’s dosage for Geodon had been
lowered from 120 mg to 60 mg. (Id.).
Upon examination, Landy noted that Keller interacted in an anxious manner with
varied eye contact and speech cadence. (Id.). Landy opined that Keller “clearly has delusions
and possibly hallucinations as well.” (Id.). According to Landy, Keller appeared to have some
awareness of a problem, but did not appreciate the nature of the problem, leading Landy to
conclude that Keller had only partial insight. (Id.). Landy diagnosed Keller with schizophrenia
and assessed a GAF of 45 to 50. (Id.). He recommended increasing Keller’s Geodon dosage to
80 mg and noted that he would consider increasing the dosage further if necessary. (Id.).
Keller returned for a medication review on March 23, 2012, and met with
Amanda Lewis (“Lewis”), NPP. (Tr. 606-07). Lewis noted that Keller was working as a kitchen
aide at an assisted living community and that he reported an “upbeat and good” mood and

5

normal sleep and appetite. (Id.). Keller indicated that he had just met with Landy, but was
uncertain as to the purpose for the appointment. (Id.). Lewis reviewed the treatment notes and
acknowledged that Keller had recently met with Landy and did not need an additional
medication review. (Id.). After her “brief” meeting with Keller, Lewis concurred with the
previous diagnoses of depression and schizophrenia. (Id.). She continued Keller’s current
medication regimen and advised him to follow up with Landy in twelve weeks. (Id.).
On July 11, 2012, Keller met with Kathryn Collina (“Collina”), MA, for his first
therapy session with her. (Tr. 604). Keller denied any psychotic symptoms and indicated that he
was compliant with treatment and doing well on his medications. (Id.). He indicated that he had
a “good life” and strong relationships with his mother and friends. (Id.). He expressed a desire
to return to work, and Collina referred him to an employment rehabilitation program. (Id.).
Keller met with Landy on July 16, 2012. (Tr. 596, 603). Keller continued to
deny hallucinations or delusions and indicated that his mood was good, although he had been
fired in the middle of May. (Id.). Keller reported that he was keeping busy by repairing his
aunt’s piano and walking daily. (Id.). Landy noted that Keller interacted in an idiosyncratic
manner throughout the interview. (Id.). He diagnosed Keller with depressive disorder, not
otherwise specified, schizophrenia, and personality disorder, not otherwise specified, and
assessed a GAF of 55 to 60. (Id.).
During the remainder of 2012, Keller met with Collina approximately once a
month. (Tr. 592-595, 597-602). In early fall 2012, Keller reported that he was doing well,
looking for employment, tuning pianos, and playing the piano at churches and cafes. (Id.).
Keller began to express concerns regarding his financial status and reported that his
unemployment benefits would be expiring and he was considering applying for disability. (Id.).

6

In October 2012, Keller reported that he drove to Michigan to visit his nieces and nephews.
(Id.). He reported symptoms of psychosis and anxiety, which he attributed to loud noises and
poor sleep. (Id.).
Keller’s case was transferred to Michael D. Simson (“Simson”), MD, due to
Landy’s departure. (Tr. 598-99). On October 22, 2012, Keller met with Simson for the first
time. (Id.). Simson noted that since Landy’s departure Keller’s medication regimen had been
altered due to insurance coverage issues and that he was now taking Perphenazine instead of
Geodon. (Id.). Keller reported that the medication change had not affected his symptoms. (Id.).
Nevertheless, he preferred Geodon and had arrived with paperwork to attempt to obtain a free
supply. (Id.). He also had paperwork related to disability and vocational services. (Id.).
Keller indicated that he was aware that he had previously been diagnosed with
schizophrenia, but did not believe that the diagnosis was correct, explaining that he had never
suffered from hallucinations or delusions. (Id.). According to Keller, his primary symptoms
were anxiety and periodic insomnia. (Id.). Keller reported that although his anxiety had been
manageable recently, it had previously interfered with his ability to work. (Id.). Simson noted
that Keller was soft-spoken with good eye contact, flat affect, and mild anxiety. (Id.).
Simson noted that Keller had previously been diagnosed with anxiety, depressive
disorder, not otherwise specified, and personality disorder, not otherwise specified. (Id.). He
acknowledged that Keller denied symptoms of schizophrenia, but indicated that persons
suffering from schizophrenia generally have limitations in insight; for this reason, Simson
indicated that Keller’s self-report was not sufficiently reliable to rule out the diagnosis. (Id.).
Simson continued the current medication regimen, but indicated that he would investigate
restarting Geodon, which had a lower side effect profile for long-term use. (Id.).

7

During his appointments with Collina throughout the rest of 2012, Keller
generally presented as anxious and restless, with a flat affect. (Tr. 592-95). He continued to
express some interest in returning to work, but indicated that he was concerned about his ability
to work due to his chronic cough. (Id.). Keller indicated that he continued to enjoy tuning
pianos and playing gigs, and was considering applying for disability while continuing those
activities. (Id.). Keller reported that he felt “bad” about considering applying for disability, but
Collina attempted to reframe his thoughts about disability and assisted him in acquiring
information about the application process. (Id.). Collina noted that Keller was a “voracious
reader” and continued to engage in meditation, yoga, dance class, and tennis. (Id.). By the end
of the year, Keller was considering work as a dishwasher through a career-services organization,
but expressed disappointment that he could not find employment in a piano-related field. (Id.).
During 2013, Keller met with Simson approximately five times and continued to
meet with Collina approximately once per month. (Tr. 572-91). During his initial appointments
with Simson in January and April, Keller reported good control of his anxiety and that he was
generally feeling good. (Tr. 584-85, 590-91). He denied racing thoughts and initially denied
delusions, but acknowledged that he sometimes felt that people could read his mind and
endorsed telepathy. (Id.). Simson noted that Keller presented with a flat and anxious affect and
that his thought process was halting at times. (Id.). He diagnosed Keller with schizophrenia,
depressive disorder, not otherwise specified, and personality disorder, not otherwise specified by
history. (Id.).
Between February and June 2013, Keller met with Collina approximately five
times. (Tr. 582-83, 586-89). During those appointments, Keller generally presented as restless
and anxious, with racing thoughts and a depressed mood. (Id.). He repeatedly expressed his

8

reservations about obtaining employment as a dishwasher, primarily due to his chronic physical
symptoms, including cough and frequent bowel movements. (Id.). Instead, Keller expressed a
preference for obtaining disability benefits, while continuing to tune pianos and play gigs when
such work was available. (Id.). According to Keller, he would be willing to volunteer or take a
paid position working with pianos, but felt that he was physically unable to perform dishwashing
or other cleaning duties. (Id.). Keller reported that he was able to live an active life, including
volunteering, playing tennis, and attending dance classes, and had joined a movie-viewing group.
(Id.). He also drove his mother to Michigan for his nephew’s graduation. (Id.).
Between June and September 2013, Keller met with Simson on three occasions.
(Tr. 574-75, 578-81). During those appointments, Keller reported increased anxiety, particularly
in relation to financial stressors, including the impending termination of his unemployment
benefits. (Id.). According to Simson, Keller presented as anxious, with a flat and mildly
perplexed affect. (Id.). He continued at times to feel that others could read his mind. (Id.). He
also reported some events that could have been auditory hallucinations, including comments
from others that seemed unlikely to have actually occurred. (Id.). Simson reiterated Keller’s
previous diagnoses and maintained his medication regimen. (Id.).
Keller met with Collina approximately four times between August and December
2013. (Tr. 571-73, 576-77). During those visits, Keller generally presented as depressed and
anxious, although he expressed interest in attending a PROS program and obtaining part-time
employment. (Id.). Collina endorsed Keller’s plan to attend the PROS program and to obtain
part-time employment. (Id.). During this time, Keller continued to search for employment that
would permit him to use his piano-playing skills and to engage socially, meditate, and exercise.
(Id.). Keller reported that he enjoyed assisting his mother with household chores, as well as

9

meditating, performing yoga, jogging, and attending dance classes. (Id.). He also reported some
difficulty during his PROS classes due to excessive auditory stimulation, including the loudness
of the other participants. (Id.).
Keller met with Simson approximately four times during 2014. (Tr. 559-60,
564-65, 568-69, 644-45). During those visits, Keller reported that he was generally able to
manage his anxiety with the help of his medication, although he noted anxiety stressors,
including loud noises and being around many people. (Id.). Keller found that attending PROS
classes was challenging due to the presence of other class participants. (Id.). Simson noted that
Keller sometimes presented as anxious or depressed and sometimes averted his gaze. (Id.). He
maintained the same diagnoses for Keller and continued him on the same medication regimen.
(Id.).
Keller also met with Collina approximately seven times during 2014.
(Tr. 561-63, 566-67, 570, 646). During those visits, Keller generally presented as anxious,
although his mood was often euthymic, and he reported ongoing engagement with the PROS
program, potential employment at a local grocery store and at a nature center, and continued
engagement in social activities, including dancing, hiking, volunteering, and participation in a
musicians’ group. (Id.). Keller’s mother attended one session and reported that Keller
occasionally “spaces out” and appears to lose concentration and focus. (Id.). In September
2014, Keller reported some anxiety concerning his upcoming disability hearing, as well as
concerns about where he would live if his mother passed away. (Id.).
2.

DePaul Personalized Recovery Oriented Services Program

Keller attended a psychosocial evaluation with a licensed clinical social worker at
the DePaul Personalized Recovery Oriented Services Program (“PROS”) on October 24, 2013,

10

upon Collina’s referral. (Tr. 649-57). Keller reported that he had obtained a degree in music
theory from Fredonia State College and had worked some menial jobs for several years. (Id.).
He was sporadically employed as a piano player. (Id.). He reported ongoing mental health
treatment at RMHC for the previous fifteen years and active engagement in church, hiking,
meditation, and dancing groups. (Id.).
During the evaluation, the social worker noted slowed speech, flat tone, somewhat
constricted affect, somewhat slowed thought processing, and relevant thought content. (Id.).
The evaluator noted that Keller had been unsuccessful in maintaining employment due to anxiety
and schizophrenia-related skill deficits, including slowed responses, limited eye contact, and odd
affect. (Id.).
During the course of his participation in the PROS program, Keller attended
monthly review meetings with Eric DeCelle (“DeCelle”), MSW. (Tr. 677-92). During these
meetings, Keller discussed his progress in the PROS classes, as well as his ongoing efforts to
obtain employment. (Id.). DeCelle noted that Keller’s eye contact was often intermittent, he
appeared to struggle with cognitive distortions, and he became anxious when thinking of past
difficulties. (Id.). He also exhibited difficulty remembering information and relied heavily upon
his notes to assist his memory. (Id.). DeCelle noted that Keller did not always appear to
recognize how his mental health symptoms might be affecting him. (Id.).
Throughout his participation in the program, Keller exhibited anxiety and had
difficulty interacting socially with others and managing loud noises or people. (Id.). On a few
occasions, DeCelle had to counsel Keller about his interactions with others, particularly
concerning respecting boundaries and socially appropriate behavior. (Id.). Keller frequently had
difficulty managing his anxiety in larger classroom settings and in interactions with others. (Id.).

11

He also had difficulty remembering the skills learned in class, appointments, and the location of
his belongings. (Id.).
Keller’s progress notes indicated that he struggled with loud noises in the
classroom setting, which increased his anxiety. (Tr. 659). He also reported feeling worried,
which resulted in tension and headaches. (Id.). According to the treatment notes, Keller
engaged in depressive and negative self-talk, and his anxiety caused him to avoid communicating
with coworkers and others, resulting in difficult interpersonal relationships at work. (Id.).
Throughout his time in the program, Keller applied for several different positions, but continued
to struggle with his anxiety. (Tr. 668).
Although Keller expressed his desire to leave the PROS program in December
2013, he graduated from the program in June 2014. (Tr. 647-48, 693-94). The discharge
summary indicated that Keller initially struggled in the classroom setting due to noise and
interpersonal challenges in the classroom, but the PROS staff made changes to the environment
to make it more comfortable and taught him skills to manage his discomfort. (Tr. 647-48).
B.

Medical Opinion Evidence
1.

Yu-Ying Lin, PhD

On January 22, 2013, state examiner Yu-Ying Lin (“Lin”), PhD, conducted a
consultative psychiatric evaluation of Keller. (Tr. 426-29). Keller drove himself to the
appointment and reported that he lived with his mother. (Id.). Keller also reported that he had
obtained a bachelor’s degree in a regular education setting. (Id.). Keller’s previous employment
as a kitchen aide lasted approximately thirteen years and ended in May 2012 when he was fired
due to interpersonal difficulties. (Id.).

12

Keller reported that he had been receiving ongoing mental health treatment at
RMHC since 1999, but had not been hospitalized for psychiatric treatment. (Id.). According to
Keller, he had difficulty maintaining sleep and loss of appetite. (Id.). Keller reported occasional
situational depressive symptoms, but had difficulty stating whether or not he suffered from
depression. (Id.). He endorsed anxiety-related symptoms since 1999, including excessive worry,
irritability, restlessness, and difficulty concentrating. (Id.). He reported that he had been
diagnosed with schizophrenia, but denied auditory and visual hallucinations. (Id.). According to
Keller, since 1999 he had felt that others could read his mind and would think negatively of him.
(Id.).
Keller reported that he was able to care for his personal hygiene and perform
household chores, including cleaning, laundry, and shopping, although his physical impairments
and allergies sometimes made those tasks difficult to complete. (Id.). According to Keller, he
did not cook due to his allergies and his mother assisted him to manage his finances. (Id.). He
reported that he was able to drive and to take public transportation. (Id.). Keller indicated that
he had a good relationship with his family and friends and that he practiced yoga and meditation
as coping mechanisms. (Id.).
During the interview, Lin noted that although Keller’s demeanor was cooperative,
his manner of relating was poor. (Id.). Upon examination, Keller was well-groomed and dressed
appropriately, had normal motor behavior and posture, and poor eye contact. (Id.). According to
Lin, Keller looked at the floor and sat facing away from Lin throughout the examination. (Id.).
At Lin’s inquiry, Keller stated that he does not like to look at women. (Id.). Lin opined that
Keller had fluent, clear speech with adequate language, coherent and goal-directed thought
processes, an affect that was slightly inappropriate to speech and thought content, clear

13

sensorium, full orientation, and average intellectual functioning with a general fund of
information that was appropriate to experience. (Id.). Although Keller reported a euthymic
mood, Lin observed him to be slightly dysphoric. (Id.). Lin noted that Keller’s attention and
concentration were intact. (Id.). Keller was able to perform simple counting calculations and
serial three exercises. (Id.). According to Lin, Keller’s recent and remote memory skills were
moderately impaired due to current psychiatric disorder. (Id.). Keller could recall three out of
three objects immediately and zero out of three objects after five minutes, and could complete six
digits forward and three digits backward. (Id.).
Lin opined that Keller could follow and understand simple directions, perform
simple tasks independently and complex tasks with supervision, maintain attention and
concentration, maintain a regular schedule, and learn new tasks. (Id.). Lin further opined that
Keller could not make appropriate decisions at times, could not relate adequately with others,
and could not deal appropriately with stress. (Id.). According to Lin, Keller’s difficulties were
caused by his distractibility, and the results of the examination appeared consistent with
psychiatric problems that could significantly interfere with Keller’s ability to function on a daily
basis. (Id.). Lin diagnosed Keller with mood disorder, not otherwise specified, and rule out
schizophrenia, and opined that his prognosis was guarded and he would need assistance to
manage his funds due to his current psychiatric state. (Id.).
2.

T. Harding, PhD

On February 21, 2013, agency medical consultant T. Harding (“Harding”), PhD,
completed a Psychiatric Review Technique. (Tr. 109-10). Harding concluded that Keller’s
mental impairments did not meet or equal Listing 12.04. (Id.). According to Harding, Keller
suffered from mild limitations in his activities of daily living and moderate limitations in his

14

ability to maintain social functioning and concentration, persistence and pace. (Id.). According
to Harding, there was no evidence that Keller had suffered from repeated episodes of
deterioration. (Id.).
Harding completed a mental residual functional capacity (“RFC”) assessment.
(Tr. 111-13). Harding opined that Keller suffered from moderate limitations in his ability to
understand, remember and carry out detailed instructions, to make simple work-related decisions,
to complete a normal workday and workweek without interruptions from psychologically-based
symptoms, to perform at a consistent pace without an unreasonable number and length of rest
periods, to accept instructions and respond appropriately to criticism from supervisors, to get
along with coworkers or peers without distracting them or exhibiting behavioral extremes, and to
respond appropriately to changes in the work setting. (Id.).
3.

Collina and Simson

In August 2014, Collina and Simson completed a mental impairment
questionnaire relating to Keller. (Tr. 625-30). They indicated that Keller suffered from
schizophrenia, paranoid, chronic, and depressive disorder, not otherwise specified, and assessed
a GAF of 60. (Id.). According to Collina and Simson, Keller demonstrated a flat affect, poor
insight, limited eye contact, moderate paucity of thought, mildly slowed movements, generalized
anxiety, and paranoia. (Id.). They assessed that his prognosis was fair with continued treatment
and medication compliance. (Id.).
Collina and Simson reported that Keller’s symptoms included decreased energy,
blunt, flat or inappropriate affect, poverty of content of speech, generalized persistent anxiety,
mood disturbance, difficulty thinking or concentrating, persistent disturbances of mood or affect,
paranoid thinking or inappropriate suspiciousness, emotional withdrawal or isolation, perceptual

15

or thinking disturbances, hallucinations or delusions, illogical thinking, easy distractibility, and
oddities of thought, perception, speech and behavior. (Id.). They opined that Keller had no
useful ability to function5 in several work-related areas, including working in coordination with
or proximity to others without being unduly distracted, making simple work-related decisions,
completing a normal workday or workweek without interruptions from psychologically-based
symptoms, performing at a consistent pace without an unreasonable number and length of rest
periods, accepting instructions and responding appropriately to criticism from supervisors,
responding appropriately to changes in a routine work setting, dealing with normal work stress,
being aware of normal hazards and taking appropriate precautions, carrying out detailed
instructions, setting realistic goals or making plans independently of others, and dealing with the
stress of semiskilled and skilled work. (Id.).
They also opined that Keller was unable to meet competitive standards6 in several
work-related areas of functioning, including remembering work-like procedures, understanding,
remembering and carrying out very short and simple instructions, understanding and
remembering detailed instructions, maintaining attention for two-hour segments, maintaining
regular attendance and being punctual within customary, usually strict tolerances, sustaining an
ordinary routine without special supervision, asking simple questions or requesting assistance,
getting along with coworkers or peers without unduly distracting them or exhibiting behavioral
extremes, interacting appropriately with the general public, maintaining socially appropriate
behavior, and traveling in unfamiliar places. (Id.). Collina and Simson opined that Keller was

5

“No useful ability to function” was defined as an extreme limitation, meaning the individual could not
perform the activity on a regular, reliable and sustained schedule in a regular work setting. (Id.).
6

“Unable to meet competitive standards” was defined to mean that the individual had noticeable
difficulties (e.g., would be distracted from the job activity) from 21 to 40 percent of the workday or workweek.
(Id.).

16

seriously limited7 in his ability to adhere to basic standards of neatness and cleanliness and use
public transportation. (Id.).
According to Collina and Simson, Keller’s difficulties stemmed from his chronic
schizophrenia, which extremely limited his ability to interact with groups, caused him difficulty
in reading social cues and following instructions, and rendered him very anxious, causing him to
have difficulty handling environmental stressors. (Id.). They opined that he suffered from
marked to extreme limitations in his ability to maintain concentration, persistence and pace,
marked limitations in his ability to maintain social functioning, and moderate limitations in his
ability to engage in activities of daily living. (Id.). They also indicated that he had suffered from
one or two episodes of decompensation of at least two weeks duration within a one-year period.
(Id.).
Collina and Simson opined that Keller suffered from a medically documented
history of mental disorder of at least two years’ duration; “a residual disease process that has
resulted in such marginal adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause [Keller] to decompensate”; and, a “[c]urrent
history of 1 or more years’ of inability to function outside a highly supportive living arrangement
with an indication of continued need for such an arrangement.” (Id.). According to Collina and
Simson, they expected that Keller would be absent from work more than four days per month
and would have difficulty working at a regular job on a sustained basis due to his high anxiety in
stressful situations. (Id.). They indicated that Keller would be unable to manage benefits in his
own best interests. (Id.).

7

“Seriously limited” was defined to mean that the individual had noticeable difficulty (e.g., would be
distracted from job activity) from 11 to 20 percent of the workday or workweek. (Id.).

17

III.

Non-Medical Evidence
A.

Adult Career and Continuing Education Services Vocational Rehabilitation
On July 31, 2012, Keller met with Kimberly M. Kenney (“Kenney”), an

assessment counselor at the Adult Career and Continuing Education Services Vocational
Rehabilitation, to obtain assistance to achieving full-time employment. (Tr. 443-46). Keller
reported previous employment at an assisted living center as a kitchen aide for approximately
twelve years. (Id.). His responsibilities included washing dishes and helping to prepare food.
(Id.). Keller reported that his employment was terminated after he left work early. (Id.). He
also reported previous employment driving a bus for developmentally disabled individuals and
driving a bus for school children. (Id.). He reported that he was terminated from the first and
quit the second. (Id.).
During the evaluation, Keller was timid, ambulated slowly, and avoided eye
contact. (Id.). He sat with his body turned away from Kenney, appeared uncomfortable, and had
difficulty elaborating on his responses. (Id.). Keller reported severe symptoms of anxiety,
racing thoughts and depression after losing his employment in 1997, but indicated that he
believed his medication had helped. (Id.). Keller had been diagnosed with schizophrenia and
depressive disorder and had several work-related limitations, including an inability to be around
repetitive loud noises and difficulties with anger management, patience, stress, and pressure.
(Id.).
Based upon the assessment, Keller’s vocational counselor Elizabeth Skender
(“Skender”) opined that Keller would require a supported employment environment.
(Tr. 447-48). During their initial meeting on September 25, 2012, Skender noted that Keller had
an “odd” presentation, which likely limited his ability to socialize. (Id.). Skender opined that a

18

supported work environment would be necessary because Keller “misses social cues” and
“misinterprets non-verbal social signals.” (Id.).
Skender met with Keller approximately once a month between October 2012 and
March 2013 to assist with his employment search. (Tr. 479, 482, 485, 488, 492, 495). During
those meetings, Keller expressed interest in searching for employment opportunities that would
utilize his piano skills and told Skender that he could not work in food service due to his chronic
cough. (Id.). He also indicated that he was not interested in a cleaning position due to his
reaction to the odors. (Id.). Skender noted that Keller required employment in a quiet setting
and continued to have difficulty maintaining eye contact during interviews. (Id.). He also
frequently needed to use the restroom. (Id.). During March and April 2013, Keller expressed
ambivalence about his job search and indicated that he was applying for social security benefits.
(Id.).
B.

Application for Benefits and Administrative Hearing
In his application for benefits, Keller reported that he was born in 1956.

(Tr. 250). Keller reported that he had completed four or more years of college and had
previously been employed as a kitchen aide and van driver. (Tr. 255). According to Keller, he
was last employed in 2012, and his employment had ended due to his impairments. (Tr. 254).
Keller reported that he lived with his mother, did not care for any family members
or pets, and was able to care for his own personal hygiene. (Tr. 263-64). Keller reported that he
was able to prepare some meals, but found it difficult to cook due to his chronic cough and
allergies. (Tr. 265-66). He reported that he was able to participate in household chores,
including laundry, cleaning and raking leaves, but was unable to work with cleaning chemicals
due to his cough and allergies. (Tr. 266). Keller reported that he left his residence daily and was

19

able to walk or drive. (Id.). He went grocery shopping approximately twice a week and was
able to manage some of his finances. (Tr. 267).
Keller reported that during a typical day he took a walk, completed errands, took a
nap, attended health appointments, learned computer skills, played the piano, and attended social
groups up to five times per week. (Tr. 264). He reported that he enjoyed reading, watching
television, using the computer, playing the piano, and dancing. (Tr. 267). Keller indicated that
he interacts with family, speaks to friends on the phone, and attends several groups, including
dancing, church, meditation, and walking groups. (Tr. 268). Keller reported some limitations
due to his physical impairments that caused frequent coughing and bowel movements.
(Tr. 270-71). According to Keller, he had difficulty getting along with coworkers during his
previous employment positions. (Tr. 270).
During the administrative hearing, Keller testified that he had lived with his
mother for the previous three years. (Tr. 78). According to Keller, he had a driver’s license and
drove daily. (Tr. 78). Keller testified that sporadically he was paid to appraise or tune pianos.
(Tr. 79-80). Keller indicated that he had attempted to find employment as a kitchen aide or
piano teacher, but had ceased looking. (Tr. 80, 96-97). Keller could not clearly articulate why
he had stopped looking for employment, although he indicated that he had anxiety about
returning to work. (Tr. 97).
According to Keller, he had previously been employed as a kitchen aide and a van
driver. (Tr. 81-82). Keller testified that he had been fired from his position as a kitchen aide
after he left work early as a result of being overtired. (Tr. 83-84). According to Keller, he likely
would still be working in that position had he not been fired, although his physical impairments –
frequent coughing and bowel movements – interfered with his ability to discharge his

20

responsibilities. (Tr. 83-85, 94-95). Keller testified that he suffered from anxiety and received
ongoing mental health treatment from a psychiatrist and a therapist. (Tr. 87).
He indicated that during a typical day he attended programs at a mental health
center, participated in group activities, and volunteered once a week for a half-day at a nature
center, picking up trash, stacking firewood, and cleaning. (Tr. 89-90). From time to time, Keller
was hired to play piano at a senior living center. (Tr. 90). He testified that he socialized with
friends and performed household chores, including raking the leaves, emptying the garbage,
clearing the gutters, and shoveling snow. (Tr. 91). He testified that he cared for his elderly
mother. (Tr. 91-92).
Vocational expert Mable Burnette (“Burnette”) also testified during the hearing.
(Tr. 98-103). The ALJ asked Burnette to characterize Keller’s previous employment. (Tr. 99).
According to Burnette, Keller previously had been employed as a kitchen aide and a van driver.
(Id.).
The ALJ asked Burnette whether a person would be able to perform Keller’s
previous jobs who was the same age as Keller, with the same educational and vocational profile,
who had no exertional limitations, but was limited to simple, repetitive tasks, and was unable to
engage in fast-paced or strict time-limited tasks. (Tr. 100). Burnette testified that such an
individual would be unable to perform the previously-identified jobs, but would be able to
perform other positions in the national economy, including office helper, cashier, and mailroom
clerk. (Id.). The ALJ then added the additional limitations of avoiding concentrated exposure to
environmental irritants and requiring ready access to a restroom. (Id.). Burnette testified that the
identified positions would remain available. (Id.). Finally, the ALJ asked Burnette to assume
the same limitations and to assume also that the individual would need to take up to eight

21

restroom breaks throughout the day in addition to meals and scheduled breaks. (Tr. 101-02).
Burnette testified that this additional requirement would preclude competitive employment.
(Tr. 102).

DISCUSSION
I.

Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s

determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).

22

To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled if he or she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A). In assessing whether
a claimant is disabled, the ALJ must employ a five-step sequential analysis. See Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:
(1)

whether the claimant is currently engaged in substantial
gainful activity;

(2)

if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;

(3)

if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;

(4)

if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and

23

(5)

if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
A.

The ALJ’s Decision
In his decision, the ALJ followed the required five-step analysis for evaluating

disability claims. (Tr. 45-56). Under step one of the process, the ALJ found that Keller had not
engaged in substantial gainful activity since May 12, 2012, the alleged onset date. (Tr. 47). At
step two, the ALJ concluded that Keller had the severe impairments of anxiety and mood
disorder with some history of reported psychotic symptoms. (Tr. 47-48). The ALJ determined
that Keller’s alleged impairments of dizziness, chronic cough, odor sensitivity, and status post
colectomy were not severe. (Id.). The ALJ also determined that Keller’s alleged impairment of
schizophrenia did not constitute a medically determinable impairment. (Tr. 51). At step three,
the ALJ determined that Keller did not have an impairment (or combination of impairments) that
met or medically equaled Listings 12.04 or 12.06. (Tr. 48-50). With respect to Keller’s mental
impairments, the ALJ found that Keller suffered from moderate difficulties in maintaining
concentration, persistence and pace, and mild limitations in social functioning and activities of
daily living. (Id.). The ALJ concluded that Keller had the RFC to perform the full range of work
at all exertional levels, but was limited to simple, routine, repetitive tasks, and could not perform
fast-paced or strict time-limited tasks. (Tr. 50-54). At steps four and five, the ALJ determined

24

that Keller was unable to perform past work, but could perform other jobs in the local and
national economy, including office helper, cashier, and mailroom clerk. (Tr. 54-55).
Accordingly, the ALJ found that Keller was not disabled. (Id.).
B.

Keller’s Contentions
Keller contends that the ALJ’s RFC determination is not supported by substantial

evidence and is the product of legal error. (Docket # 13). First, Keller maintains that the ALJ
erred at step two by failing to find that his diagnosed schizophrenia was a medically
determinable impairment. (Docket ## 13 at 13-14; 21 at 2-3). Next, Keller maintains that the
ALJ’s step two error was not harmless because it infected the remainder of the sequential
analysis, including the ALJ’s step three analysis, RFC assessment, and the hypothetical posed to
the vocational expert at step five. (Docket ## 13 at 14-16, 23; 21 at 2-4). Keller also maintains
that the ALJ’s RFC assessment was not based upon substantial evidence because he erred in
evaluating the opinion evidence. (Docket # 13 at 16-23).

II.

Analysis
Keller challenges the ALJ’s determination that his schizophrenia was not

medically determinable at step two and contends that the error infected the remainder of the
ALJ’s sequential evaluation. (Docket ## 13 at 13-16; 21 at 2-4). The Commissioner maintains
that substantial evidence supports the ALJ’s determination and that even if the ALJ had erred in
finding that Keller’s schizophrenia was not severe, such error was harmless. (Docket # 20-1 at
12-14). As discussed below, the Commissioner mischaracterizes the ALJ’s determination and
misapprehends the significance of the ALJ’s conclusions at step two.

25

Pursuant to the regulations, disability may be found only if a claimant has a
medically determinable impairment. See 20 C.F.R. § 404.1505(a). Such an impairment must
“result from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques” and “must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only by [plaintiff's]
statement of symptoms.” 20 C.F.R. § 404.1508.8 The evidence that may establish a medically
determinable impairment must come from “acceptable medical sources,” such as licensed
physicians. 20 C.F.R. § 404.1513(a).
At step two of the evaluation, the ALJ must determine whether the claimant has a
“severe impairment” that “significantly limits [the claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. § 404.1520 (a)(4)(ii), (c). “An impairment or combination of
impairments is ‘not severe’ when medical and other evidence establishes only a slight
abnormality or a combination of slight abnormalities that would have at most a minimal effect on
an individual’s ability to perform basic work activities.” Jeffords v. Astrue, 2012 WL 3860800,
*3 (W.D.N.Y. 2012) (quoting Ahern v. Astrue, 2011 WL 1113534, *8 (E.D.N.Y. 2011)); see also
Schifano v. Astrue, 2013 WL 2898058, *3 (W.D.N.Y. 2013) (“[a]n impairment is severe if it
causes more than a de minimis limitation to a claimant’s physical or mental ability to do basic
work activities”). “[S]ymptom-related limitations and restrictions must be considered at [ ] step
[two] of the sequential evaluation process, provided that the individual has a medically
determinable impairment(s) that could reasonably be expected to produce the symptoms.” SSR
96-3p, 1996 WL 374181, *2 (July 2, 1996). If an impairment is not medically determinable, it
cannot be severe within the meaning of the SSA, and “symptom-related limitations and

8

The current version of this regulation, which became effective March 27, 2017, is codified at 20 C.F.R.
§ 404.1521.

26

restrictions allegedly resulting from that impairment cannot be considered at step two of the
sequential process.” Huskey v. Astrue, 2007 WL 2042504, *7 (D. Kan. 2007).
In his decision, the ALJ concluded that Keller suffered from the severe mental
health impairments of anxiety and mood disorder with some history of reported psychotic
symptoms. (Tr. 47). With respect to Keller’s alleged schizophrenia, the ALJ specifically
concluded that this impairment was “not shown to be medically determinable on this record.”
(Tr. 51). I easily conclude that the ALJ’s determination that Keller did not suffer from a
medically determinable impairment of schizophrenia is not supported by substantial evidence in
the record. The record is replete with diagnoses from Keller’s treating providers that he suffers
from schizophrenia. (Tr. 419, 457, 542, 560, 565, 569, 572, 575, 579, 580, 584, 591, 594, 603,
608-09, 641, 645). The medical records demonstrate that as early as 1998 Keller was suspected
to suffer from schizophrenia. (Tr. 425). He has received ongoing mental health treatment since
that time and has consistently been prescribed antipsychotic medication before and throughout
the relevant period. (Tr. 614).
In reaching his conclusion that schizophrenia was not medically determinable, the
ALJ relied upon the fact that Keller failed to list schizophrenia as an impairment in his
application for benefits. (Tr. 51). However, the regulations clearly provide that the fact “[t]hat
plaintiff did not specifically allege [an impairment] in [his] initial benefits applications is not
dispositive . . . [and the] rule requires an ALJ to investigate the disabling effects of an
impairment if the record contains evidence indicating that such an impairment might exist . . . [,]
without regard to whether the claimant has alleged that particular impairment as a basis for
disability.” Prentice v. Apfel, 11 F. Supp. 2d 420, 426 (S.D.N.Y. 1998) (citing 20 C.F.R.
§ 404.1512(a)). The ALJ’s reliance upon Keller’s failure to list schizophrenia is particularly

27

troublesome because the treatment records repeatedly suggested that Keller had poor insight into
his mental health impairments; indeed, Keller routinely attributed his limitations to anxiety rather
than to any schizophrenic disorder, despite his providers’ diagnoses.
The ALJ determined that “many psychological reports do not substantiate th[e]
diagnosis” and cited treatment records from Keller’s primary care physician and RMHC; in fact,
both set of records contain multiple references to a diagnosis of schizophrenia. (Id.). The one
report relied upon by the ALJ that did not diagnose schizophrenia, Harding’s report, does not
indicate whether schizophrenia was considered and rejected or overlooked altogether.9 Given
the repeated and consistent diagnosis of schizophrenia by Keller’s treating providers, who
observed and recorded Keller’s signs and symptoms during treatment sessions occurring over the
course of several years, coupled with his long-standing treatment with antipsychotic medication,
the ALJ erred by concluding that schizophrenia was not a medically determinable impairment.
See Showers v. Colvin, 2015 WL 1383819, *7 (N.D.N.Y. 2015) (ALJ erred in concluding that
the record lacked evidence of mental health impairments; “[the evaluating physician’s] diagnoses
of personality disorder, depression and anxiety were based on sufficient medical evidence
consisting of symptoms, signs, and laboratory findings[;] . . . and [the ALJ’s] rejection of them
was error”); Schadt v. Soc. Sec. Admin., Comm’r, 2012 WL 1910083, *6 (D. Vt. 2012) (“[t]he
[c]ourt finds that the ALJ erred in determining at step two that [plaintiff] was not disabled
because she did not have a medically determinable impairment”); Carpenter v. Astrue, 2011 WL
3951623, *9 (D. Vt. 2011) (ALJ erred in concluding impairment was not medically determinable
despite diagnoses from several acceptable medical sources and medical evidence establishing

9

In addition, despite the substantial evidence demonstrating that Keller suffered from anxiety, an
impairment that the ALJ found to be severe at step two, Harding failed to analyze the listing associated with anxiety;
instead, he evaluated only Listing 12.04, associated with depressive, bipolar and related disorders. (Tr. 110).

28

signs, symptoms, and laboratory findings; “[o]n the facts of this case, it was error for the ALJ to
find that [p]laintiff’s [impairment] was not medically determinable”).
The Commissioner maintains that there was no error at step two because the “ALJ
did not specifically find that [p]laintiff’s schizophrenia was not a severe impairment.” (Docket
# 20-1 at 13). The Commissioner maintains that the ALJ did consider Keller’s schizophrenia,
and its attendant symptoms or limitations, because the diagnosis was encompassed within the
broader mental health impairment of “mood disorder with some history of psychotic symptoms,”
which the ALJ found to be severe. (Id.). Thus, the Commissioner reasons, because the ALJ
considered Keller’s “history of psychotic symptoms,” the ALJ actually found Keller’s
schizophrenia to be severe. (Id.). The Commissioner’s position erroneously conflates a
diagnosis of mood disorder with a diagnosis of schizophrenia and suggests that the two
diagnoses result in the same functional limitations. See Carter v. Astrue, 2011 WL 3510570, *5
(M.D. Ala. 2011) (discussing at length differences between schizophrenia and major depressive
disorder; “[m]ore disturbing, however, is the Commissioner’s position that the ALJ’s failure to
consider [plaintiff’s] schizophrenia at step two is simply harmless error because the plaintiff has
not demonstrated that the limitations caused by major depressive disorder and chronic paranoid
schizophrenia are different”).
The Commissioner also maintains that even if the ALJ erred in this respect, such
error was harmless because the ALJ proceeded through the sequential process and specifically
considered Keller’s mental health impairments during the subsequent steps. (Id. at 13-14).
Although the Commissioner is correct that “[a]n error at step two may be harmless if the ALJ
identifie[d] other severe impairments at step two, proceed[ed] through the remainder of the
sequential evaluation process and specifically consider[ed] the ‘nonsevere’ impairment during

29

subsequent steps of the process,” see Wilson v. Colvin, 2015 WL 1003933, *20 (W.D.N.Y.
2015), the ALJ’s error in this case stemmed not from a severity conclusion, but from the
conclusion that Keller’s schizophrenia was not a medically determinable impairment. The
distinction is significant because the step two harmless error doctrine is inapplicable to a
determination that an impairment is not medically determinable. See Showers v. Colvin, 2015
WL 1383819 at *8 (harmless error doctrine not applicable to determination that impairment was
not medically determinable; “[s]ince [the ALJ] found that [plaintiff’s] claimed personality
disorder, depression and anxiety were not medically-determinable abnormalities rising to the
level of impairments, functional limitations attributable thereto were never considered at
subsequent evaluative steps or when formulating [plaintiff’s] residual functional capacity”);
Carpenter v. Astrue, 2011 WL 3951623 at *8 n.4, 9 (“[e]ven the Commissioner acknowledges,
as he must, the difference between finding an impairment not medically determinable, and
finding it not severe”; “the court cannot find that this error was harmless because SSR 96-3
provides that symptom-related limitations will only be considered if the impairment to which
they related is medically determinable[;] [b]ecause the ALJ found [plaintiff’s impairment] not
medically determinable, the ALJ did not consider symptoms related to it in his RFC
assessment”); see also Childs v. Colvin, 2016 WL 1127801, *3 (W.D.N.Y. 2016) (“[i]n this case,
the ALJ did not determine that plaintiff’s schizoaffective disorder was non-severe; rather, he
concluded that she did not suffer from the disorder at all[;] . . . at a minimum, the ALJ failed in
his duty to consider the combined impact of plaintiff’s medically-determinable impairments…
throughout the disability determination process”) (internal quotations and brackets omitted).
Accordingly, remand is necessary for the ALJ to properly evaluate Keller’s schizophrenia at step
two and at the remaining steps of the sequential evaluation process. See Showers, 2015 WL

30

1383819 at *9 (remanding for ALJ to consider additional mental health impairments at step two
and the subsequent steps; “[a]bsent his [s]tep [two] error[,] . . . [the ALJ] would have assessed
[the additional impairments’] severity[, and] [w]hether he found them severe or not, he would
have considered their combined effects when determining [plaintiff’s] [RFC][;] [i]n so doing, he
likely would have added limitations commonly associated with [those mental health
impairments]”); Schadt v. Soc. Sec. Admin., Comm’r, 2012 WL 1910083 at *7 (“the matter must
be remanded for a new analysis at step two, and beyond if necessary”); Carpenter, 2011 WL
3951623 at *9 (“[r]emand is necessary for the ALJ to properly evaluate [p]laintiff’s [impairment]
at step two”); see also Childs v. Colvin, 2016 WL 1127801 at *4 (“[t]he ALJ’s failure to consider
plaintiff’s schizoaffective disorder at both steps two and three of the sequential evaluation
process constituted reversible error, because a full consideration of plaintiff’s disorder could
have affected the outcome of her application”). Because remand is appropriate for further
evaluation at step two, I need not reach Keller’s remaining contentions regarding other errors in
the sequential evaluation.
Even assuming, however, that the harmless error doctrine could be applied to the
ALJ’s error, I disagree with the Commissioner that it is clear from the decision that the ALJ
considered and accounted for the limitations associated with Keller’s schizophrenia during the
remainder of the sequential evaluation. My review of the ALJ’s decision suggests that he
overlooked or failed to account for limitations that are likely associated with Keller’s
schizophrenia. As an initial matter, as noted by the parties, the ALJ failed to assess whether
Keller’s impairments met or medically equaled Listing 12.03, the listing associated with the
schizophrenia spectrum and other psychotic disorders. Instead, the ALJ only considered Listings
12.04, related to depressive, bipolar and related disorders, and 12.06, related to anxiety and

31

obsessive-compulsive disorders. As noted above, because I have determined that a remand for
further evaluation at step two is necessary, I need not reach the issue of whether the ALJ’s failure
to specifically consider Listing 12.03 requires remand. Yet, the ALJ’s failure to consider this
listing underscores the likelihood that the ALJ failed to consider schizophrenia-associated
limitations during the remainder of the sequential evaluation.
Further, the record in its entirety suggests that despite his extensive activities of
daily living, Keller suffers from several mental limitations, particularly when interacting with
others, that could interfere with his ability to complete work-related activities and were not
accounted for by the ALJ in his RFC. Significantly, the record demonstrates that Keller
experienced interpersonal conflicts and difficulty managing exposure to loud noises during his
previous employment. His treating provider at the time, Landy, attributed Keller’s difficulties to
likely delusions or hallucinations. Keller’s treating providers repeatedly reported that he
interacted in an idiosyncratic manner, frequently avoided eye contact, and demonstrated
depressive or anxious feelings. Keller repeatedly reported difficulty managing his anxiety in
groups of people or when interacting with others, and reported ongoing difficulties with loud or
repetitive noises. Indeed, Keller considered withdrawing from the PROS classes due to his
inability to navigate a large group setting, particularly given the noise level of the classroom.
Only after the PROS staff made modifications to accommodate Keller did he agree to continue.
The vocational service provider staff, as well as Lin, noted his limited eye contact
and poor manner of relating. They also noted his apparent difficulty with memory, including
substantial reliance on note-taking to assist his memory. Keller required counseling to manage
his interactions with others, particularly as to appropriate boundaries and socially appropriate
behavior. Similarly, Collina and Simson opined that Keller’s chronic schizophrenia caused him

32

difficulty interacting with groups, reading social cues, and following instructions. These
difficulties increased his anxiety and impeded his ability to manage environmental stressors
effectively.
The ALJ’s RFC assessment, which limited Keller to simple work not requiring
quotas or production-paced work, simply does not account for many of the mental limitations
identified in the record. In his decision, the ALJ discounted record evidence that Keller suffered
from several mental limitations affecting his ability to interact with others, suggesting that there
was either conflicting or inconsistent information regarding Keller’s poor manner of relating,
variable eye contact, and inability to appreciate social cues. (Tr. 49). The ALJ ignored or
overlooked evidence in the record suggesting that Keller suffered from paranoia, delusions, or
hallucinations. (Tr. 51). Likewise, the ALJ ignored or overlooked repeated references in the
record to Keller’s difficulty managing loud noises in work or classroom settings. Ultimately, the
ALJ concluded that Keller’s broad range of daily living activities contradicted any record
evidence suggesting that Keller suffered from limitations affecting his memory, ability to interact
with others, or his ability to manage stress.
Although the ALJ did not err in noting that Keller participated in extensive
activities of daily living, it is not clear whether the ALJ’s failure to acknowledge Keller’s
schizophrenia as a medically determinable impairment influenced his decision to discount
significant record evidence suggesting that Keller suffers from additional mental limitations not
accounted for in the RFC. Remand is thus appropriate for further consideration of the record,
taking into account Keller’s medically determinable impairment of schizophrenia.
Of course, even if Keller is determined on remand to suffer from additional
schizophrenia-related mental limitations, such a determination does not conclude the inquiry and

33

compel a finding of disability. Rather, any schizophrenia-related limitations for which there
exists substantial evidence in the record must be accounted for in the RFC, and a vocational
expert should be consulted to determine whether positions exist in the national economy
considering those limitations.

CONCLUSION
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 20) is DENIED, and Keller’s motion for judgment on the pleadings
(Docket # 11) is GRANTED to the extent that the Commissioner’s decision is reversed, and this
case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
September 18, 2017

34