Davis v. Colvin
ORDER granting 12 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order and denying 15 Motion for Judg ment on the Pleadings. In light of the fact that Plaintiffs applications were initially filed in 2011 (nearly seven years ago), on remand, the administrative proceedings shall be conducted on an expedited basis, to be completed no later than November 31, 2018. The Clerk of the Court is directed to close this case.. Signed by Hon. Michael A. Telesca on 3/9/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD TERMAYNE DAVIS,
No. 6:16-CV-06815 (MAT)
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
(“Plaintiff”) brings this action pursuant to Titles II and XVI of
the Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security1
(the “Commissioner” or “Defendant”) denying his applications for
disability insurance benefits (“DIB”) and supplemental security
pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ cross-motions for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
discussed below, Plaintiff’s motion is granted to the extent that
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.
Plaintiff protectively filed concurrent applications for DIB
and SSI on August 2, 2011, alleging disability as of March 6, 2011
hypertension, bipolar disorder, a learning disability, short term
memory loss, and a twisted knee.
Administrative Transcript (“T.”)
administrative law judge (“ALJ”) Yvette N. Diamond on October 3,
On December 17, 2012, ALJ Diamond issued an
On February 27, 2014, the
Appeals Council denied Plaintiff’s request for review.
Plaintiff instituted a civil action in this Court, and on November
26, 2014, on stipulation by the parties, this Court remanded the
claim for further administrative proceedings. See Davis v. Colvin,
Case No. 14-cv-6184 FPG, Docket No. 12.
On remand, the Appeals Council vacated the ALJ’s decision and
remanded the matter for further consideration and development.
June 17, 2016, Plaintiff appeared at a second hearing before ALJ
issued an unfavorable decision.
On October 21, 2016, ALJ O’Brien
This action followed.
III. The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied
§§ 404.1520, 416.920. Initially, the ALJ determined that Plaintiff
met the insured status requirements of the Act through September
step one of the five-step sequential
evaluation, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date. Id. At
step two, the ALJ found that Plaintiff suffered from the severe
impairments of major depressive disorder, anxiety disorder, panic
disorder, and chronic pain syndrome for the lower back and knee.
The ALJ further found that Plaintiff suffered from the non-
severe impairment of alcohol dependence in remission.
At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of any listed impairment.
reaching this determination.
Id. The ALJ
Before proceeding to step four, the ALJ determined that
Plaintiff retained the RFC to perform less than a full range of
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
with the following non-exertional limitations: can occasionally
slippery, or moving surfaces; can perform simple rote tasks, adjust
to occasional changes in the work-setting, and occasionally make
work-related decisions; can work to meet daily goals, but cannot
maintain an hourly, machine-driven, assembly line production rate,
and cannot have rush hours; cannot interact with the public or
perform teamwork, but can occasionally interact with coworkers.
At step four, the ALJ found that Plaintiff was unable to
perform any past relevant work.
At step five, the ALJ
relied on the testimony of a vocational expert to conclude that,
considering Plaintiff’s age, education, work experience, and RFC,
there were jobs that exist in significant numbers in the national
economy that Plaintiff could perform, including laundry sorter,
Accordingly, the ALJ found that Plaintiff was not disabled as
defined in the Act.
Scope of Review
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation
Although the reviewing court 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), “[i]f there is substantial evidence to support the
[Commissioner’s] determination, it must be upheld.” Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “The deferential standard
Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003).
Here, Plaintiff contends that the ALJ’s RFC finding was not
supported by substantial evidence. In particular, Plaintiff argues
considering the limitations associated with his mental impairments.
Plaintiff also argues that the ALJ committed legal error by failing
to comply with the Appeals Council’s remand order. For the reasons
set forth below, the Court finds that remand of this matter for
further administrative proceedings is necessary.
Consideration of Plaintiff’s Mental Impairments
Plaintiff argues that remand of this matter for further
administrative proceedings is required because the ALJ failed to
obtain an updated medical opinion regarding his mental impairments,
but instead relied on stale opinions from state agency consultants
rendered more than five years prior to the ALJ’s decision.
“[M]edical source opinions that are . . . stale[ ] and based
on an incomplete medical record may not be substantial evidence to
support an ALJ finding.”
Camille v. Colvin, 104 F. Supp. 3d 329,
343-44 (W.D.N.Y. 2015), aff’d, 652 F. App’x 25 (2d Cir. 2016)
(quotation marks and citation omitted); see also Girolamo v.
Colvin, 2014 WL 2207993, at *7-8 (W.D.N.Y. May 28, 2014) (ALJ
should not have afforded great weight to medical opinions rendered
before plaintiff’s second surgery); Jones v. Comm’r of Soc. Sec.,
2012 WL 3637450, at *2 (E.D.N.Y. Aug. 22, 2012) (ALJ should not
have relied on a medical opinion in part because it was 1.5 years
stale as of the plaintiff’s hearing date and did not account for
her deteriorating condition).
In this case, in assessing the limitations associated with
Plaintiff’s mental impairments, the ALJ gave some weight to opinion
Plaintiff on October 28, 2011, and great weight to the opinion of
state agency reviewer Dr. T. Harding, who reviewed Plaintiff’s
medical records and performed a psychiatric review technique and
mental residual functional capacity assessment in November 2011.
See T. 622-26.
However, these opinions were indisputably stale by
the time the ALJ issued her decision.
Not only had they been
issued approximately five years earlier, significant developments
in Plaintiff’s medical history had occurred since that time.
For example, from January 31, 2012 to February 6, 2012,
Hospital for his mental health problems. T. 338-91. Plaintiff was
brought to the emergency room on a voluntary mental health arrest,
having reported suicidal ideation with plan to overdose, as well as
auditory and visual hallucinations, to his therapist.
Plaintiff’s GAF score on admission was 11-20. T. 371. Plaintiff’s
ambulance for a second time in June 2013, when he was again
assessed with a GAF score of 11-20.
T. 906, 938.
Plaintiff’s mental health examinations from 2012 forward were
concludes that Dr. Ransom’s and Dr. Harding’s opinions could not
constitute substantial evidence for the ALJ’s RFC finding.
The Commissioner contends that the ALJ did not rely solely on
Dr. Ransom’s and Dr. Harding’s opinions in formulating her RFC
assessment, but also considered the “evidence as a whole.”
No. 15-1 at 20.
However, “[a]n ALJ must rely on the medical
findings contained within the record and cannot make his own
diagnosis without substantial medical evidence to support his
Goldthrite v. Astrue, 535 F.Supp.2d. 329, 339 (W.D.N.Y.
“[A]n ALJ is not qualified to assess a claimant’s RFC on
the basis of bare medical findings, and as a result an ALJ’s
determination of RFC without a medical advisor’s assessment is not
No. 13-CV-6286P, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015)
(internal citation omitted).
In this case, where the medical
assessments relied upon by the ALJ were stale and based on an
incomplete medical record, the ALJ could not remedy that deficiency
Plaintiff’s functional limitations herself.
See id. (“Where the
medical findings in the record merely diagnose [the] claimant’s .
. . impairments and do not relate those diagnoses to specific
residual functional capabilities,” it is not permissible for the
The Court also agrees with Plaintiff that the opinions of
conclusion that further development of the record in this case was
While it is true (and Plaintiff acknowledges) that
Plaintiff’s practitioners were not acceptable medical sources and
that their opinions were therefore not entitled to controlling
weight, their observations still should have reasonably put the ALJ
on notice that additional assessment of Plaintiff’s mental health
impairments was necessary.
“It is well settled that the ALJ has an affirmative duty to
develop the record in a disability benefits case, and that remand
Encompassed in this duty is the requirement that an ALJ assemble
the claimant’s complete medical history and re-contact treating
claimant is disabled.”
Weed Covey v. Colvin, 96 F. Supp. 3d 14, 29
(W.D.N.Y. 2015) (internal quotations omitted).
In this case, the
worsening) mental health impairments and stale, incomplete medical
Under these circumstances, it was necessary for the ALJ
to obtain an updated opinion from an acceptable medical source
regarding Plaintiff’s limitations.
The failure to do so resulted
Plaintiff’s Other Argument
Plaintiff has also argued that the ALJ failed to comply with
the Appeals Council’s order to consider evidence that he had
resided in a supportive living environment for over 18 months as of
January 2013. Having already determined that remand of this matter
is required, the Court need not and does not resolve this issue.
On remand, the AlJ should properly consider all the evidence of
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings (Docket No. 12) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings consistent with this Decision and Order. In light of
the fact that Plaintiff’s applications were initially filed in 2011
(nearly seven years ago), on remand, the administrative proceedings
shall be conducted on an expedited basis, to be completed no later
than November 31, 2018.
The Commissioner’s motion for judgment on
the pleadings (Docket No. 15) is denied. The Clerk of the Court is
directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
March 9, 2018
Rochester, New York.
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