Scott v. Colvin

Filing 18

DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed and the matter is remanded solely for the calculation and payment of benefits; denying 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 12/14/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT LEE SCOTT, JR.,
No.6:16-cv-06780-MAT
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
Robert Lee Scott, Jr. (“Plaintiff”), represented by counsel,
brings this action under Title II of the Social Security Act (“the
Act”), seeking review of the final decision of Nancy A. Berryhill,
Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”), denying his application for disability insurance
benefits (“DIB”). The Court has jurisdiction over the matter
pursuant to 42 U.S.C. § 405(g).
PROCEDURAL BACKGROUND
On February 14, 2013, Plaintiff protectively filed for DIB,
alleging

disability

beginning

February

1,

2012,

due

to

posttraumatic stress disorder (“PTSD”), alcoholism, anxiety, and
depression. Administrative Transcript (“T.”) 61. The claim was
initially denied on June 10, 2013, and Plaintiff timely requested
a hearing. T. 70-79. A hearing was conducted on March 6, 2015, in
Rochester,

New

York,

by

Administrative

Law

Judge

Brian

Kane

(“ALJ”). Plaintiff appeared with his attorney and testified. A
vocational expert (“VE”) also testified.
The ALJ issued an unfavorable decision on April 13, 2015.
T. 9-22. Plaintiff’s timely request for review was denied by the
Appeals Council on October 13, 2016, making the ALJ’s decision the
final

decision

of

the

Commissioner.

T.

1-4.

Plaintiff

then

commenced this action. Presently before the Court are the parties’
competing

motions

for

judgment

on

the

pleadings

pursuant

to

Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
set forth below, Plaintiff’s motion is granted to the extent that
the Commissioner’s decision is reversed and the matter remanded for
further administrative proceedings consistent with this opinion.
Defendant’s motion is denied.
LEGAL FRAMEWORK FOR THE ALJ’S DECISION
The

ALJ

applied

the

five-step

sequential

evaluation

promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. § 404.1520(a). Additionally, because there was
medical evidence of substance use disorder, the ALJ performed the
secondary analysis required by 20 C.F.R. § 404.1535.
Pursuant to 42 U.S.C. § 423(d)(2)(C), even if a claimant
qualifies for disability benefits under the five-step analysis, the
claimant “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.”

-2-

42 U.S.C. § 423(d)(2)(C); see also 20 C.F.R. § 404.1535(a). In
determining

whether

a

claimant’s alcohol

or

drug abuse

is a

“material” factor, an ALJ is required to apply the following
process codified at 20 C.F.R. § 404.1535(b):
(1) The key factor we will examine in determining whether
drug addiction or alcoholism is a contributing factor
material to the determination of disability is whether we
would still find you disabled if you stopped using drugs
or alcohol.
(2) In making this determination, we will evaluate which
of your current physical and mental limitations, upon
which we based our current disability determination,
would remain if you stopped using drugs or alcohol and
then determine whether any or all of your remaining
limitations would be disabling.
(i) If we determine that your remaining limitations would
not be disabling, we will find that your drug addiction
or alcoholism is a contributing factor material to the
determination of disability.
(ii) If we determine that your remaining limitations are
disabling, you are disabled independent of your drug
addiction or alcoholism and we will find that your drug
addiction or alcoholism is not a contributing factor
material to the determination of disability.
20 C.F.R. § 404.1535(b) (“§ 404.1535(b)”). The critical question is
“whether [Commissioner] would still find [the claimant] disabled if
[he] stopped using drugs or alcohol.” 20 C.F.R. § 404.1535(b)(1);
see

also

20

C.F.R.

404.1535(b)(2)(i)

(“If

[the

Commissioner]

determine[s] that [the claimant’s] remaining limitations would not
be

disabling,

[he]

will

find

that

[the]

drug

addiction

or

alcoholism is a contributing factor material to the determination
of disability.”). The claimant bears the burden of demonstrating

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that any drug or alcohol use is not material to an otherwise
favorable decision. Cage v. Comm’r of Soc. Sec., 692 F.3d 118,
124-25 (2d Cir. 2012).
THE ALJ’S DECISION
Initially, the ALJ determined Plaintiff met the insured status
requirements through December 31, 2016. T. 14. At step one, the ALJ
found

that

Plaintiff

had

not

engaged

in

substantial

gainful

employment since his alleged onset date of February 1, 2012. Id.
At

step

two,

the

ALJ

determined

that

Plaintiff

had

the

“severe” impairments of substance abuse and a history of PTSD. Id.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
T. 15. The ALJ particularly considered Listings 12.04 (Affective
Disorders)

and

12.06

(Anxiety

Disorders)

in

making

this

determination. Id.
Before proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”) to perform medium
work as defined in 20 C.F.R. § 404.1567(c) with the following
additional

limitations:

occasionally

lifting

and/or

carrying

twenty-five pounds; sitting for six hours and standing and/or
walking for six hours; would likely occasionally have difficulty
following

directions and

maintaining

concentration

tasks; and could not learn new tasks. T. 16.

-4-

for

simple

At step four, the ALJ determined that Plaintiff was unable to
perform his past relevant work as a licensed practical nurse
(“LPN”). T. 18. At step five, the ALJ relied on the VE’s testimony
to find that, taking into account Plaintiff’s age, education, work
experience, and RFC, there are no jobs that exist in significant
numbers in the national economy that Plaintiff could perform.
T. 18.
The ALJ then reverted to step three to apply the secondary
analysis required by § 404.1535(b). Taking Plaintiff’s alcohol
abuse into consideration, the ALJ again found that Plaintiff did
not have an impairment or combination of impairments that met or
medically equals an impairment listed in 20 C.F.R. Part 404,
Subpart

P,

Appendix

1.

T.

19.

Again,

the

ALJ

particularly

considered Listings 12.04 and 12.06 in making this determination.
Id.
Before

proceeding

to

step

four,

the

ALJ

found

that

if

Plaintiff stopped abusing alcohol, he would have the RFC to perform
medium

work

following

as

defined

additional

in

20

C.F.R.

limitations:

§

404.1567(c)

occasionally

with

lifting

the

and/or

carrying twenty-five pounds; sitting for six hours and standing
and/or walking for six hours; and being capable of attending and
concentrating sufficiently to perform simple job tasks. T. 20.
At step four, the ALJ determined that Plaintiff was still
unable to perform any past relevant work, even if he stopped

-5-

abusing alcohol. T. 21. At step five, the ALJ relied on the VE’s
testimony to find that, taking into account Plaintiff’s age (44
years-old), education (high school diploma and nursing degree),
work experience (LPN and Army medic), and RFC, there are jobs that
exist in significant numbers in the national economy that Plaintiff
could perform, including the representative occupations of battery
tester and courier messenger. T. 21-22. The ALJ accordingly found
that in the absence of alcohol abuse, Plaintiff would not have been
under a disability as defined in the Act since the alleged onset
date. T. 22.
SCOPE OF REVIEW BY DISTRICT COURT
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error.

42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). 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”). “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)
(quotation

omitted).

The

reviewing
-6-

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 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)).
DISCUSSION
I.

Plaintiff’s First Argument: Failure to Consider the Opinion of
Danny A. Martinez
On September 4, 2013, Plaintiff was examined by Danny A.

Martinez (“Martinez”), a Compensation and Pension Coordinator with
the VA, who indicates that he has training and experience as a
licensed clinical psychologist. T. 523-33. Martinez indicates that
Plaintiff enlisted the Army and served from 1986 to 1992, and
received an honorable discharge. He obtained his LPN degree during
his military service and in worked at an evacuation hospital
stateside during the Persian Gulf War. After the military, he
continued in the nursing field but had been unemployed for the past
two years. He had signed up for a 6-month BOCES program beginning
in October to retrain for General Maintenance work as he finds
nursing triggering his symptoms of PTSD, and was having difficulty
in settings where he has to interact with others.

Martinez noted

that “this desire to work without interacting socially is another
symptom of PTSD.” T. 526. Plaintiff had not received outpatient or
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inpatient treatment for his mental health issues until about the
time that he became unemployed and homeless two years ago; he then
began consistently attending outpatient treatment through the VA
for PTSD and alcohol use. Plaintiff started using alcohol before
the military, and continued to use on a daily basis throughout his
military career. It was after his head-on car accident in 2012 that
he began using alcohol more heavily; his healthcare providers
realized that he was using alcohol to self-medicate his underlying
mental health problems, particularly his PTSD. He was put on Paxil
and then Seroquel for his “trauma nightmares,” but it was highly
sedating and knocked him out to the point where he was unable to
function.
Currently,

Martinez noted that Plaintiff’s symptoms included

depressed mood; anxiety; suspiciousness; near continuous panic or
depression

affecting

the

ability

to

function

independently,

appropriately and effectively; chronic sleep impairment; impairment
of short- and long-term memory (e.g,. retention of only highly
learned material, while forgetting to complete tasks); flattened
affect; impaired judgment; disturbances of motivation and mood;
difficulty in establishing and maintaining effective work and
social

relationships;

difficulty

in

adapting

to

stressful

circumstances, including work or a work-like setting; inability to
establish and maintain effective relationships; suicidal ideation;
obsessional

rituals

which

interfere

-8-

with

routine

activities;

impaired impulse control, such as unprovoked irritability with
periods of violence; intermittent inability to perform activities
of daily living, including maintenance of minimal personal hygiene.
Plaintiff’s

current

medications

were

paroxetine,

prazosin,

hydroxyzine, quetiapine.1
Martinez concluded that Plaintiff’s PTSD
was directly connected to the stabbing and secondarily to
his nursing role[,] in which he was continually exposed
to the threat of death or injury in his patients, who had
been inju[r]ed and were dying as he anticipated being
deployed to the front. He functioned marginally after
these trauma, until he was re-traumatized by a civilian
MVA [motor vehicle accident], when the full spectrum of
PTSD symptoms occurred, as is the case with a delayed
onset PTSD.
T. 533.

Martinez stated that the foregoing opinion was “based on

[his] training and experience as a clinical psychologist in a VA
PTSD program.” Id.
As Plaintiff points out, the ALJ’s decision contains no
mention of

Martinez’s opinion. Plaintiff correctly notes that

pursuant to the Commissioner’s regulations, an ALJ must evaluate
every medical opinion he receives, regardless of its source. See
20 C.F.R. § 404.1527(c) (“Regardless of its source, [the Social
Security Administration] will evaluate every medical opinion [it]
1

Paroxetine is used to treat depression, panic disorder, and social
anxiety disorder. https://medlineplus.gov/druginfo/meds/a698032.html.
Prazosin is prescribed to treat nightmares frequently associated with PTSD.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3538493/. Quetiapine is used
along with other medications to treat depression.
https://medlineplus.gov/druginfo/meds/a698019.html. Hydroxyzine is prescribed
to treat sleep disorders in patients with PTSD.
https://www.ncbi.nlm.nih.gov/pubmed/24993832.

-9-

receive[s].”); see also, e.g., Lopez v. Sec’y of Health and Human
Servs., 728 F.2d 148, 150–51 (2d Cir. 1984) (“[The Second Circuit]
ha[s] remanded cases when it appears that the ALJ has failed to
consider relevant and probative evidence which is available to
him.”) (citing Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.
1975)). The Commissioner suggests, in a footnote, that the ALJ’s
failure to address Martinez’s opinion was not error, or was at most
harmless error, because Martinez is not really a psychologist. See
Defendant’s Memorandum of Law (“Def.’s Mem.”) at 19 n.7. The
Commissioner notes that his electronic signature in the record is
not accompanied by any professional credentials. T. 523, 533. Thus,
the

Commissioner

medical

source

asserts,

during

the

Martinez’s
pertinent

status

as

time-frame

an

acceptable

has

not

been

established. However, the Commissioner does not offer any proof to
controvert Martinez’s statement that his opinion was “based on
[his] training and experience as a clinical psychologist in a VA
PTSD program.” T. 533.
Even

assuming

that

Martinez

is

not

a

licensed

clinical

psychologist, the ALJ still was required to evaluate and weigh his
opinion as an “other source.” See SSR 06-3p, 2006 WL 2329939, at *3
(S.S.A. Aug. 9, 2006) (“With the growth of managed health care in
recent years and the emphasis on containing medical costs, medical
sources who are not ‘acceptable medical sources,’ such as nurse
practitioners, physician assistants, and licensed clinical social

-10-

workers, have increasingly assumed a greater percentage of the
treatment and evaluation functions previously handled primarily by
physicians and psychologists.”). Thus, the Commissioner “recognizes
that ‘other source’ opinions ‘are important and should be evaluated
on key issues such as impairment severity and functional effects,
along with the other relevant evidence in the file.’” Glena v.
Colvin, No. 1:15-CV-00510(MAT), 2018 WL 739096, at *3 (W.D.N.Y.
Feb. 6, 2018) (quoting SSR 06-3p, 2006 WL 2329939, at *3 (S.S.A.
Aug. 9, 2006)). SSR 06-3p acknowledges that whether or not an
opinion comes from an “acceptable medical source” is but one factor
to consider when deciding the weight to give that opinion. See 2006
WL 2329939, at *5 (“[D]epending on the particular facts in a case,
and after applying the factors for weighing opinion evidence, an
opinion from a medical source who is not an ‘acceptable medical
source’ may outweigh the opinion of an ‘acceptable medical source,’
including the medical opinion of a treating source.”). While an
opinion from an “other source” was not entitled to the same
presumption of deference as a “treating physician,” a court is not
precluded from giving more weight to an “other source” opinion than
to an “acceptable medical source” opinion. See id. (“Giving more
weight

to

the

opinion

from

a

medical

source

who

is

not

an

‘acceptable medical source’ than to the opinion from a treating
source does not conflict with the treating source rules in 20 CFR

-11-

404.1527(d)(2) and 416.927(d)(2) and SSR 96-2p, ‘Titles II and XVI:
Giving Controlling Weight To Treating Source Medical Opinions.’”).
The Court finds that the failure to evaluate Martinez’s
opinion cannot be harmless, because it is highly relevant and
probative

as

to

the

drug

addiction

and

alcoholism

(“DAA”)

materiality analysis required by § 404.1535(b) and Social Security
Ruling (“SSR”) 13-2p, 2013 WL 621536 (S.S.A. Feb. 20, 2013).
Martinez’s
Plaintiff’s

report
alcohol

provides
abuse

compelling
affects

his

evidence

that,

while

medically

determinable

impairment of PTSD, the PTSD nonetheless is “irreversible or could
not improve to the point of nondisability.” SSR 13-2p, 2013 WL
621536, at *5. In that case, the “DAA [is] not material[.]” Id.;
see also id. at *9 (The SSA “will find that DAA is not material to
the determination of disability and allow the claim if the record
is fully developed and the evidence does not establish that the
claimant’s co-occurring mental disorder(s) would improve to the
point of nondisability in the absence of DAA.”).

Martinez opined

that it was “at least as likely as not” that Plaintiff’s PTSD was
incurred in or caused by his experiences while in service. T. 53233. Martinez stated “[n]ot applicable” in the section of the form
asking whether he was providing a medical opinion for aggravation
of a condition that existed prior to service, from which it can be
inferred that Plaintiff’s alcohol use (which pre-dated his service
in the Army) did not exacerbate his PTSD. The ALJ erred in failing

-12-

to discuss the import of Martinez’s opinion on his decision to deny
Plaintiff’s claim on the basis that limitations from his medically
determinable mental impairments would improve in the absence of
alcohol use.
The Commissioner’s sole substantive argument in opposition to
Plaintiff’s argument concerning Martinez’s opinion is that the ALJ
was not bound by the conclusions reached by the VA regarding
Plaintiff’s disability status. As Plaintiff notes, that argument is
inapposite because the gravamen of his argument is not that the ALJ
was bound by the VA’s disability findings. Rather, as discussed in
the

foregoing

paragraphs,

Plaintiff

argues

that

the

ALJ

unjustifiably ignored Martinez’s report, which was highly relevant
to the DAA analysis and the ALJ’s subsequent determination that
Plaintiff was not disabled in the absence of his alcohol use.
Moreover, it appears that the ALJ did not accurately state the
record when justifying his conclusion that Plaintiff would have no
nonexertional limitations if he stopped his alcohol use. The ALJ
noted “there is little indication that [Plaintiff] is involved in
any group or individual therapy as treatment for [his PTSD] or any
other psychological condition.” T. 21. However, that conclusion is
belied by Martinez’s opinion stating that Plaintiff has been
“consistently attending” outpatient treatment with the Rochester VA
for PTSD and alcohol abuse (e.g., from August to December of 2012,
and from December 2012, to January 2013, with the Buffalo VA.
T. 526-27. The ALJ’s statement that “[t]here is no evidence of
ongoing difficulties outside [Plaintiff’s] substance use” is a
-13-

significant mischaracterization of the medical and other records,
as succinctly summarized in Martinez’s opinion.
The

ALJ

also

reasoned

that

in

terms

of

limitations

on

attending and concentrating, “there is no evidence of a limitation
to the degree that it would be disabling. Plaintiff does household
chores and currently has a volunteer position. This likely would
continue were he to refrain from substance abuse.” This reasoning
is

unpersuasive

and

overemphasizes

the

evidentiary

value

of

Plaintiff’s daily activities. First, the key challenge to the RFC
assessment is the lack of non-exertional limitations to address the
limitations caused by Plaintiff’s PTSD. Plaintiff’s ability to do
household chores in the privacy of his home is not probative as to
his ability to perform the mental functions required for full-time
(defined

as

five

days

a

week,

eight

hours

a

day),

gainful

employment in a competitive work environment. Second, there is no
evidence that Plaintiff’s volunteer position was the substantial
equivalent,
requirements,

insofar
of

as

functional

competitive,

requirements

full-time,

substantial

or

time

gainful

employment. See Balsamo v. Chater, 142 F.3d 75, 81–82 (2d Cir.
1998). “Courts have consistently noted that ‘[i]t is legal error to
give excessive weight to a claimant’s ability to perform basic
daily activities when assessing his or her ability to engage in
substantial

gainful

activity.’”

Dailey

v.

Colvin,

No. 1:14-CV-00841-MAT, 2017 WL 2569683, at *4 (W.D.N.Y. June 14,
2017) (quoting Moss v. Colvin, No. 1:13-CV-731-GHW-MHD, 2014 WL
4631884, at *33 (S.D.N.Y. Sept. 16, 2014); citation omitted).
-14-

“There are critical differences between activities of daily living
(which one can do at his own pace when he is able) and keeping a
full time job.” Moss, 2014 WL 4631884, at *33 (citing Bjornson v.
Astrue,

671

F.3d

640,

647

(7th

Cir.

2012)

(“The

critical

differences between activities of daily living and activities in a
full-time job are that a person has more flexibility in scheduling
the former than the latter, can get help from other persons . . .,
and is not held to a minimum standard of performance, as she would
be by an employer. . . .”)).
While the Second Circuit has held that disability “applicants
bear the burden of proving that they would be disabled in the
absence of DAA,” Cage, 692 F.3d at 120, the Court cannot say that
“substantial evidence supported the ALJ’s finding that [Plaintiff]
would not be disabled absent DAA.” Id. Not only did the ALJ ignore
a highly relevant opinion from Martinez, who evaluated Plaintiff
and has expertise in PTSD, the ALJ’s supporting rationale “was
based

on

several

mischaracterizations

of

the

record,

thereby

rendering the RFC assessment legally flawed and unsupported by
substantial evidence.” Seignious v. Colvin, No. 6:15-CV-06065(MAT),
2016 WL 96219, at *5 (W.D.N.Y. Jan. 8, 2016) (citing Ellis v.
Colvin, 29 F. Supp.3d 288, 302 (W.D.N.Y. 2014) (“It was plainly
improper for the ALJ to bolster his own RFC assessment with a
blatant misstatement of the record.”) (further citations omitted)).
For all of the reasons discussed above, the Court cannot say
the ALJ’s failure to even address Martinez’s opinion was harmless
error. Moreover, SSR 13-2p makes it clear that the ALJ must
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“provide sufficient information so that a subsequent reviewer
considering all of the evidence in the case record can understand
the reasons for the . . . findings,” 2013 WL 621536, at *2, made in
regards to the DAA materiality issue. In short, the record reveals
that the DAA materiality analysis and resultant RFC is not based on
substantial

evidence,

and

there

is

insufficient

information

provided in the ALJ’s decision for this Court to credit the ALJ’s
rationale.
II.

Plaintiff’s Second Argument: Failure to Explain How Opinion of
Non-Examining State Agency Psychological Consultant Supports
Finding that Plaintiff’s Alcohol Use Was Material
On

June

6,

2013,

Lisa

Blackwell,

Ph.D.,

a

State

agency

psychologist, reviewed Plaintiff’s file. T. 63-67. Dr. Blackwell
opined that Plaintiff was mildly limited in his activities of daily
living and social functioning; faced moderate difficulties with
respect to concentration, persistence, or pace; and had never
experienced an extended episode of decompensation. T. 64. In
particular, Dr. Blackwell assessed “moderate” problems in the
following

functional

domains:

the

ability

to

understand

and

remember detailed instructions; the ability to carry out detailed
instructions; the ability to maintain attention and concentration
for extended periods; the ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms
and to perform at a consistent pace without an unreasonable number
and length of rest periods; the ability to deal with the general
public; the ability to respond appropriately to changes in the work

-16-

setting; and the ability to set realistic goals or make plans
independently of others. T. 65-67.
When explaining these RFC findings further, Dr. Blackwell
noted that “MSE [mental status examination] findings are more in
keeping with [Plaintiff] being capable of doing simple task[s]
which also appears consistent with VA reports.” T. 67. However, the
ALJ

failed

to

conclusions,

explain

purportedly

how

he

based

reconciled
on

Dr.

consultative

Blackwell’s
psychologist

Dr. Christine Ransom’s mental status examination of Plaintiff, with
the ability to do simple work-related tasks.
Dr. Ransom’s report was based on her clinical observations of
Plaintiff during the consultative examination which led her to
formulate

a

very

restricted

medical

source

statement.

In

particular, Dr. Ransom noted that on mental status examination, his
motor behavior was lethargic; eye contact was downcast; speech was
slow and halting; quality of voice was moderately to markedly
dysphoric and tense; affect was moderately to markedly dysphoric;
attention and concentration was mildly impaired (he could only do
2/3 simple calculations and had difficulty with serial 3's);
immediate memory was mildly impaired (he could only remember
1/3 objects immediately, and could only recite 3 digits forward and
2 digits backwards); and recent memory was mildly repaired (he
could only remember 1 out of 3 objects after 5 minutes).
The ALJ found that Dr. Ransom’s opinion was not entitled to
“any great weight.” T. 18. He asserted that it was based on “almost
exclusively” on Plaintiff’s subjective complaints. However, this
-17-

does

not

appear

to

be

the

case

since,

as

set

forth

above,

Dr. Ransom conducted a mental status examination of Plaintiff. As
a result of her evaluation, Dr. Ransom opined that he
will have moderate difficulty following and understanding
simple directions and instructions, perform simple tasks
independently, maintain attention and concentration for
simple tasks, maintain a simple regular schedule and
learn simple new tasks. He would have moderate to marked
difficulty performing complex tasks, relating adequately
with others and appropriately dealing with stress. Areas
of difficulty are secondary to posttraumatic stress
disorder, currently moderate to marked; major depressive
disorder; currently moderate to marked; panic disorder
with agoraphobia, currently moderate to marked. The
results of the evaluation are consistent with the
claimant’s allegations.
T. 278-79. Dr. Ransom listed Plaintiff’s diagnoses as PTSD; major
depressive

disorder,

panic

disorder,

and

alcohol

dependence.

T. 279. Notably, although she was clearly aware of his alcohol
dependence, Dr. Ransom did not find that his areas of difficulty in
work-related functioning were “secondary” to his alcohol abuse.
The

ALJ’s explanations for the respective weights given to

Drs. Ransom’s

and

Dr.

Blackwell’s

opinions

are

not

based on

substantial evidence. Rather, it appears that the ALJ chose to
adopt only that portion of the opinion evidence supportive of a
finding on non-disability, i.e., Dr. Blackwell’s conclusion, based
solely on a records-review, that Plaintiff could perform simple
work without any other nonexertional limitations.

However, in

cases where disability is alleged based on mental impairments,
“[t]here can be no serious doubt that a psychiatric opinion based
on a face-to-face interview with the patient is more reliable than
an opinion based on a review of a cold, medical record.” Westphal
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v. Eastman Kodak Co., No. 05-CV-6120, 2006 WL 1720380, at *5
(W.D.N.Y.

June

21,

2006).

As

noted

above,

the

ALJ

ignored

Martinez’s opinion, and essentially dismissed Dr. Ransom’s more
restrictive

opinion,

both

of

which

were

based

on

in-person

evaluations of Plaintiff. This selective parsing of the record
further compels the conclusion that the ALJ’s RFC assessment was
not based on substantial evidence. See, e.g., Wolfanger v. Colvin,
No. 6:16-CV-06688(MAT), 2018 WL 2425811, at *4 (W.D.N.Y. May 30,
2018)

(reversing

where

“RFC

determination

relie[d]

on

the

impermissible cherry-picking of evidence that supports a finding of
not-disabled

while

ignoring

disability

claimant”)

other

evidence

(citing

favorable

Trumpower

v.

to

the

Colvin,

No. 6:13–cv–6661(MAT), 2015 WL 162991, at *16 (W.D.N.Y. Jan. 13,
2015) (“While an ALJ is entitled to resolve conflicts in the
evidentiary record, [he or] she ‘cannot pick and choose evidence
that supports a particular conclusion.’”) (quoting Smith v. Bowen,
687 F. Supp. 902, 904 (S.D.N.Y. 1988); citations omitted).
REMEDY
“Sentence four of Section 405(g) provides district courts with
the authority to affirm, reverse, or modify a decision of the
Commissioner ‘with or without remanding the case for a rehearing.’”
Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting
42 U.S.C. § 405(g)).
calculation

of

The standard for directing a remand for

benefits

is

met

when

the

record

persuasively

demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and where there is no reason to conclude
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that the additional evidence might support the Commissioner’s claim
that the claimant is not disabled, Butts, 388 F.3d at 385–86.
After reviewing the entire record, the Court finds that it
already

has

been

developed

fully

for

the

relevant

period.

Furthermore, the Court finds that the record contains persuasive
proof of Plaintiff’s disability. The ALJ inexplicably ignored
relevant evidence from Martinez, the VA Compensation and Pension
Coordinator, who indicates that he has training and experience as
a

licensed

clinical

psychologist.

Whether

Martinez

is

a

psychologist and an “acceptable medical source” or an “other
source,” as insinuated by the Commissioner, the ALJ should have
considered his opinion. Based on the absence of any non-exertional
limitations in the RFC assessment, apart from restricting Plaintiff
to “simple work,” the ALJ apparently accorded the most weight to
non-examining review consultant Dr. Blackwell and essentially no
weight

to

the

opinion

of

examining

consultative

psychologist

Dr. Ransom. Dr. Ransom, who conducted a face-to-face evaluation of
Plaintiff, issued a report containing observations and a medical
source statement that was consistent with Martinez’s opinion.
Applying the

correct

legal

standards

to

all

of

the

relevant

evidence, the Court concludes that Plaintiff’s mental impairments
are disabling in the absence of his alcohol use. Accordingly, the
Court finds that a remand for further administrative proceedings to
correct the above-discussed errors would serve no purpose, and
remand for the calculation of benefits is warranted.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings is granted to the extent that the Commissioner’s
decision is reversed and the matter is remanded solely for the
calculation and payment of benefits. The Commissioner’s motion for
judgement on the pleadings is denied. The Clerk of the Court is
directed to close this case.
SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated: December 14, 2018
Rochester, New York

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