Elmer v. Commissioner of Social Security
Filing
17
ORDER granting in part and denying in part the plaintiff's MOTION for judgment on the pleadings, Docket Item 10 , and denying the defendant's MOTION for judgment on the pleadings, Docket Item 13 . The decision of the Commissioner is vacated, and the matter is remanded for further administrative proceedings consistent with this decision. Signed by Hon. Lawrence J. Vilardo on 11/14/2019. (CEH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Elizabeth M. Elmer,
Plaintiff,
v.
18-CV-6468
Decision and Order
Commissioner of Social Security,
Defendant.
On June 21, 2018, the plaintiff, Elizabeth M. Elmer, brought this action under the
Social Security Act ("the Act"). She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that she was not disabled. Docket
Item 1. On February 4, 2019, Elmer moved for judgment on the pleadings, Docket Item
10; on April 5, 2019, the Commissioner responded and cross-moved for judgment on
the pleadings, Docket Item 13; and on April 25, 2019, Elmer replied, Docket Item 14.
For the reasons stated below, the Court grants Elmer’s motion in part and denies
the Commissioner’s cross-motion.
BACKGROUND
I.
PROCEDURAL HISTORY
On August 7, 2014, Elmer applied for Supplemental Security Income benefits.
Docket Item 8 at 144-53. She claimed that she had been disabled since August 7,
2013, due to depression, anxiety, asthma, stress headaches, and allergies. Id. at 145.
On November 21, 2014, Elmer received notice that her application was denied
because she was not disabled under the Act. Id. at 66-77. She requested a hearing
before an administrative law judge ("ALJ"), id. at 91, which was held on January 31,
2017, id. at 38-64. The ALJ then issued a decision on May 31, 2017, confirming the
finding that Elmer was not disabled. Id. at 20-31. Elmer appealed the ALJ’s decision,
but her appeal was denied on April 23, 2018, and the decision then became final. Id. at
4-8.
II.
RELEVANT MEDICAL EVIDENCE
The following summarizes the medical evidence most relevant to Elmer’s appeal.
Elmer was examined by several different providers, but four—Paul Howe, M.D.;
professionals at Evelyn Brandon Center for Mental Health; Harbinder Toor, M.D.; and
Adam Brownfield, Ph.D.—are of most significance to the claim of disability here.
A.
Paul Howe, M.D.
On March 15, 2013, Elmer was evaluated by her primary care physician, Paul
Howe, M.D. Id. at 236. Dr. Howe diagnosed abnormal weight loss, dysuria, and
pathesias (tingling sensation) of the feet; refilled Elmer’s prescriptions for the
antidepressants Trazodone and Remeron; and recommended that Elmer seek
psychiatric care. Id. at 237. Elmer followed up with Dr. Howe on May 10, 2013. Id. at
240. He confirmed his prior diagnoses and added a fourth diagnosis of an unspecified
depressive disorder. Id. at 242.
On October 16, 2014, Dr. Howe updated his diagnoses to include bilateral lower
extremity paresthesia and syncope. Id. at 245. He noted that he also suspected tarsal
tunnel syndrome and recommended that Elmer undergo electromyography (“EMG”) to
further understand her condition. Id. at 244.
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Dr. Howe next saw Elmer on August 4, 2016. Id. at 440. Elmer reported
“headache, dizziness, neck cracking, armpit pain, forearm pain, hand pain, wrist pain,
weight loss, hip pain, menstrual pain, eye itching, sinus pressure, right upper medial
thigh pain, foot pain, back pain, and acid reflux.” Id. Dr. Howe renewed Elmer’s
Remeron prescription; encouraged her to reconnect with her psychiatric providers; and
recommended ibuprofen and physical therapy for back pain, Zantac for allergies and
gastroesophageal reflux disease complaints, and an X-ray to determine whether she
had a fracture in her left foot. Id. at 442.
B.
Evelyn Brandon Center for Mental Health
In October 2013, Elmer established care at the Evelyn Brandon Center for
Mental Health. Starting on November 12, 2013, and ending on June 11, 2015, she
received biweekly individual counseling from Cheryl Chiappone, L.M.H.C., to address
her diagnoses of an unspecified mood disorder, an unspecified anxiety disorder,
borderline personality disorder, an unspecified depressive disorder, and cannabis
dependence. See, e.g., id. at 413, 477. Although Elmer missed a number of
appointments, the record shows that she was present for at least 23 sessions over this
nineteen-month period. See id. at 252-425. Elmer’s October 21, 2015 discharge
papers note that Elmer reportedly stopped treatment due to a lapse in insurance
coverage. Id. at 252.
Elmer also was seen by at least three different psychiatrists at Evelyn Brandon.
On February 13, 2014, psychiatrist Gerhardt S. Wagner, M.D./Ph.D., noted that Elmer
reported worsening anxiety that “ma[de] it difficult to leave [her] house.” Id. at 220. He
prescribed the antidepressant Remeron and the antianxiety medication hydroxyzine. Id.
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On June 5, 2014, psychiatrist Prakesh P. Reddy, M.D., noted paranoid ideation, a
depressed mood, and poor concentration and memory. He prescribed the
antidepressants Remeron and Effexor. Id. at 374. Dr. Reddy again prescribed both
medications on September 24, 2014, and October 22, 2014. Id. at 324-26.
On April 9, 2015, psychiatrist Stephanie Beneski-Barlow, D.O., evaluated Elmer.
Elmer reported that she had stopped treatment because she “couldn’t make [herself]
come” and that “in the last several months she ha[d]n’t been leaving her house and
sometimes . . . would keep her children home from school.” Id. at 286. Dr. BeneskiBarlow noted that Elmer was anxious and depressed, prescribed Remeron, and
recommended that Elmer engage in individual and group therapy. Id. at 287, 289.
Elmer followed up with Dr. Beneski-Barlow on June 3, 2015. Elmer reported that “lately
her mood ha[d] been ‘pretty good,’” but that she was “unsure if she wanted to engage in
group therapy because ‘it [would] make [her] anxiety worse.’” Id. at 262. Dr. BeneskiBarlow continued her Remeron prescription and also started Elmer on the
anticonvulsant/anti-anxiety medication Gabapentin. Id.
Elmer reestablished care at Evelyn Brandon in January 2017. Jay Pruiett,
L.C.S.W., performed a comprehensive psychosocial evaluation of Elmer on February 9,
2017. Id. at 470-73. He diagnosed an unspecified mood disorder and borderline
personality disorder. Id. at 470. Elmer then followed up with William Benton, M.H.C.,
for counseling on February 23, 2017, and March 6, 2017. Id. at 476-84. Mr. Benton
noted that Elmer’s thought coherency, concentration, and attention were all within
normal limits; that she expressed no delusions or other psychotic content; and that her
recent and remote memory were “[i]ntact.” See id. at 477-78, 481-82.
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C.
Harbinder Toor, M.D.
On November 5, 2014, neurologist Harbinder Toor, M.D., performed a
consultative internal medicine examination of Elmer. Id. at 229-33. Dr. Toor noted that
Elmer had a normal gait but had difficulty walking, getting on and off the examination
table, and changing for the exam. Id. at 231. He found that she had full range of
motion in her shoulders, elbows, forearms, wrists, hips, knees, and ankles but noted
that Elmer reported tingling and numbness in her toes and hands. Id. at 231-32. He
also found that her “finger dexterity [was] not intact in both hands.” Id. at 232. He
concluded that Elmer had “mild-to-moderate limitation doing fine motor activity with the
hands”; had “moderate limitation[s] standing, walking, bending, and lifting”; and “should
avoid irritants or other factors which can precipitate asthma.” Id. at 232. Finally, he
opined that headaches could “interfere with [Elmer’s] routine.” Id.
D.
Adam Brownfield, Ph.D.
On November 5, 2014, psychologist Adam Brownfield, Ph.D., performed a
consultative psychological evaluation of Elmer. Id. at 223-27. He found that she had an
anxious affect, dysthymic mood, intact attention and concentration, impaired recent and
remote memory skills, and good insight and judgment. Id. at 225. He diagnosed
generalized anxiety disorder, possible agoraphobia, an unspecified obsessive
compulsive disorder, major depressive disorder (moderate), and unspecified cannabis
use, and he recommended that Elmer continue with psychological and psychiatric
treatment. Id. at 226. Dr. Brownfield concluded that Elmer had limitations in “following
and understand[ing] simple directions and instructions, performing simple tasks
independently, making appropriate decisions, and relating adequately with others”; mild
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limitations in “maintaining a regular schedule, learning new tasks, and performing
complex tasks independently”; and marked limitations in “appropriately dealing with
stress.” Id. at 225-26.
III.
THE ALJ’S DECISION
In denying Elmer’s application, the ALJ evaluated Elmer’s claim under the Social
Security Administration’s five-step evaluation process for disability determinations. See
20 C.F.R. § 404.1520. At the first step, the ALJ determines whether the claimant is
currently engaged in substantial gainful employment. § 404.1520(a)(4)(i). If so, the
claimant is not disabled. Id. If not, the ALJ proceeds to step two. § 404.1520(a)(4).
At step two, the ALJ decides whether the claimant is suffering from any severe
impairments. § 404.1520(a)(4)(ii). If there are no severe impairments, the claimant is
not disabled. Id. If there are any severe impairments, the ALJ proceeds to step three.
§ 404.1520(a)(4).
At step three, the ALJ determines whether any severe impairment or combination
of impairments meets or equals an impairment listed in the regulations.
§ 404.1520(a)(4)(iii). If the claimant’s severe impairment or combination of impairments
meets or equals one listed in the regulations, the claimant is disabled. Id. But if the ALJ
finds that none of the severe impairments meets or equals any in the regulations, the
ALJ proceeds to step four. § 404.1520(a)(4).
As part of step four, the ALJ first determines the claimant’s residual functional
capacity (“RFC”). See §§ 404.1520(a)(4)(iv); 404.1520(d)-(e). The RFC is a holistic
assessment of the claimant—addressing both severe and nonsevere medical
6
impairments—that evaluates whether the claimant can perform past relevant work or
other work in the national economy. See 20 C.F.R. § 404.1545.
After determining the claimant's RFC, the ALJ completes step four. 20 C.F.R.
§ 404.1520(e). If the claimant can perform past relevant work, he or she is not disabled
and the analysis ends. § 404.1520(f). But if the claimant cannot, the ALJ proceeds to
step five. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f).
In the fifth and final step, the Commissioner must present evidence showing that
the claimant is not disabled because the claimant is physically and mentally capable of
adjusting to an alternative job. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
20 C.F.R. § 404.1520(a)(4)(v), (g). More specifically, the Commissioner bears the
burden of proving that the claimant "retains a residual functional capacity to perform
alternative substantial gainful work which exists in the national economy." Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Here, the ALJ found, at step one, that Elmer had not engaged in substantial
gainful activity since she filed a claim for disability benefits on August 7, 2014. Docket
Item 8 at 22. At step two, the ALJ found that Elmer had the following severe
impairments: “bilateral carpal tunnel syndrome; bilateral tarsal tunnel syndrome; lower
back pain; asthma; tension headaches; [an unspecified] mood disorder . . . ; major
depressive disorder; [an unspecified] anxiety disorder . . . ; generalized anxiety disorder;
[an] unspecified obsessive compulsive disorder; borderline personality disorder;
unspecified cannabis use; and alcohol abuse dependence.” Id.
At step three, the ALJ found that Elmer did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
7
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. In reaching this
conclusion, the ALJ specifically found that Elmer’s impairments did not meet the criteria
for listing 1.04 (spinal disorders), listing 1.02 (major joint dysfunction), listing 3.03
(asthma), listing 12.04 (depressive, bipolar, and related disorders), listing 12.06 (anxiety
and obsessive-compulsive disorders), or listing 12.08 (personality and impulse-control
disorders).
At step four, the ALJ determined that Elmer had the RFC to perform “light work”
with the following limitations:
[She could] occasionally . . . lift and/or carry 20 pounds; frequently lift and/or
carry 10 pounds; stand and/or walk about six hours in an eight hour day; sit
about six hours in an eight hour day; occasionally push and/or pull 20
pounds; frequently finger bilaterally; . . . understand, remember, and carry
out simple instructions and tasks; frequently interact with co-workers and
supervisors; [have] occasional contact with the general public; . . . work in
a low stress work environment (i.e. no supervisory duties, no independent
decision-making required, no strict production quotas, minimal changes in
work routine and processes, etc.); and . . . consistently maintain
concentration and focus for up to two hours at a time.
Id. at 24. In reaching this determination, the ALJ accorded “significant weight” to the
opinion of the consultative physician, Dr. Toor, id. at 26-27; “significant weight” to the
opinion of the consultative psychologist, Dr. Brownfield, id. at 27; and “[s]ome weight” to
the opinion of Elmer’s treating therapist, Ms. Chiappone, id. at 28. Because Elmer had
no past relevant work, the ALJ proceeded to step five.
At step five, the ALJ found that “considering [Elmer’s] age, education, work
experience, and [RFC], there [were] jobs that exist[ed] in significant numbers in the
national economy that [she] could perform.” Id. at 30. Specifically, the ALJ credited the
testimony of a vocational expert (“VE”) that Elmer could work as a warehouse support
8
worker or as a garnisher. Id. The ALJ therefore concluded that Elmer was not disabled.
Id. at 31.
STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the
determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at 985
(quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “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) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to correct legal principles.” Johnson, 817 F.2d at 986.
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DISCUSSION
I.
ALLEGATIONS
Elmer argues that the ALJ erred in determining her RFC because first, he did not
incorporate Dr. Toor’s fine motor limitations into her physical RFC and second, he did
not properly account for her limitations in social interaction and stress tolerance in
determining her mental RFC. Docket Item 10-1 at 17-29. The Court disagrees with the
first objection but agrees with a material portion of the second and accordingly remands
the matter for reconsideration of Elmer’s ability to find work in light of her individual
stress tolerance.
II.
ANALYSIS
When determining a plaintiff’s RFC, the ALJ must evaluate every medical opinion
received. 20 C.F.R. § 416.927(c). “Although the ALJ is not required to reconcile every
ambiguity and inconsistency of medical testimony, he cannot pick and choose evidence
that supports a particular conclusion.” Smith v. Bowen, 687 F. Supp. 902, 904
(S.D.N.Y. 1988) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984); Fiorello v.
Heckler, 725 F.2d 174, 175–76 (2d Cir. 1983); Ceballos v. Bowen, 649 F. Supp 693,
700 (S.D.N.Y. 1986)). An ALJ’s “failure to acknowledge relevant evidence or to explain
its implicit rejection is plain error.” Id. (quoting Ceballos, 649 F. Supp. at 702).
E.
Physical RFC
Elmer challenges the ALJ’s physical RFC determination, arguing that the ALJ
failed to adequately explain his reasoning for rejecting the opinion of the consultative
physician, Dr. Toor, that Elmer had moderate limitations in fine motor activity. See
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Docket Item 10-1 at 17-25. Although Elmer is correct that an ALJ must explain his
reasoning for rejecting medical opinions in the record, she is incorrect that the ALJ here
failed to do that.
The ALJ adequately considered all the medical evidence in determining Elmer’s
physical RFC. As Elmer highlights, in November 2014, Dr. Toor, to whose opinion the
ALJ accorded “significant weight,” id. at 27, opined that Elmer had “moderate
limitations” in fine motor activity, id. at 232. The ALJ concluded, however, that Elmer
could “frequently finger bilaterally,” id. at 24, and he relied explicitly on the opinion of
Elmer’s treating physician, Dr. Howe, in making this finding, id. at 28. As the ALJ
explained, “[Elmer’s] own doctor . . . reported fewer limitations than Dr. Toor described.
Dr. Howe reported that [Elmer] has had back pain for years, but does not experience
any radiating numbness, tingling, or weakness in her legs.” Id. In fact, none of Dr.
Howe’s treatment notes reference pain or loss of functioning in Elmer’s hands, instead
discussing only “bilateral lower extremity paresthesias,” for which Dr. Howe
“recommended EMG testing” to determine whether Elmer had “tarsal tunnel syndrome.”
Id. at 241, 244; see generally id. at 240-50 (no discussion of upper extremity pain
between March 15, 2013 and October 16, 2014). The ALJ thus explicitly and
adequately jusitifed his decision to reject Dr. Toor’s opinion that Elmer had moderate
limitations in her fine motor skills.
F.
Mental RFC
Elmer also challenges the ALJ’s mental RFC determination. She claims that
substantial evidence does not support the ALJ’s determination regarding her ability to
concentrate and pay attention and that the ALJ failed to properly account for her
11
response to stress in determining whether she could work. The Court agrees with the
latter argument.
1.
Limits in Concentration and Attention
Elmer argues that the ALJ improperly ignored evidence of impaired concentration
and attention in determining her RFC. Docket Item 13-1 at 27-29. Specifically, she
claims that substantial evidence does not support the ALJ’s conclusion that she could
“consistently maintain concentration and focus for up to two hours at a time.” See
Docket Item 8 at 24, 27. In reaching this conclusion, the ALJ explicitly relied on the
opinion of the consultative psychologist, Dr. Brown, who opined that Elmer’s attention
and concentration capacities were “[i]ntact, because she was able to count, do simple
calculations, and serials 3s, but had to use her fingers” and that Elmer was only “mildly
limited in maintaining a regular schedule, learning new tasks, and performing complex
tasks independently. Id. at 225. But contrary to Elmer’s assertions, Dr. Brown is not the
only medical source who reached a similar conclusion. The ALJ’s finding as to her
ability to focus was therefore supported by substantial evidence in the record.
For example, Elmer’s therapist, Ms. Chiappone, reported poor concentration
during only two of Elmer’s 23 counseling sessions between November 2013 and June
2015, see id. at 409, 311; in the remaining 21 sessions she reported “[n]o apparent
[cognitive] deficits.” See id. at 252-425. Similarly, although Dr. Reddy reported poor
concentration during his three evaluations of Elmer in June 2014, September 2014, and
October 2014, see id. at 324, 328, 373, Doctors Wagner and Beneski-Barlow reported
no issues in this area during their three collective evaluations in February 2014, April
2015, and June 2015, see id. at 220, 263, 288. Finally, Mr. Benton reported during his
12
two therapy sessions with Elmer in February and March 2017 that her concentration
and attention were “[w]ithin [d]efined [l]imits.” Id. at 478, 482. Therefore, substantial
evidence—i.e., "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” Richardson, 402 U.S. at 401 (quoting Consolidated
Edison Co., 305 U.S. at 229)—exists to support the ALJ’s finding that Elmer could
consistently maintain attention and focus for up to two hours at a time.
2.
Stress Assessment
Elmer also argues that the ALJ failed to consider the impact of her response to
stress in determining whether she could perform jobs that exist in the national economy.
See Docket Item 10-1 at 24-27. Dr. Brownfield, to whose opinion the ALJ accorded
“significant weight,” Docket Item 8 at 27, opined that Elmer was “markedly limited in
appropriately dealing with stress,” id. at 226. As such, the ALJ was required to make
“specific findings about the nature of [Elmer’s] stress, the circumstances that trigger it,
and how those factors affect [her] ability to work.” Stadler v. Barnhart, 464 F. Supp. 2d
183, 189 (W.D.N.Y. 2006) (citing Social Security Ruling (“SSR”) 85-15, 1985 WL 56857,
at *6 (Jan. 1, 1985) (explaining that “[b]ecause response to the demands of work is
highly individualized, the skill level of a position is not necessarily related to the difficulty
an individual will have in meeting the demands of the job . . . [and a]ny impairmentrelated limitations created by an individual's response to demands of work . . . must be
reflected in the RFC assessment”)). The ALJ did not do that.
What is more, an ALJ’s inclusion of a generalized limitation of “low stress work”
in a claimant’s RFC does not ensure a reviewing court that the required individualized
inquiry was undertaken. As the Commissioner’s own regulations explain:
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A claimant's condition may make performance of an unskilled job as difficult
as an objectively more demanding job. [F]or example, a busboy need only
clear dishes from tables. But an individual with a severe mental disorder
may find unmanageable the demands of making sure that he removes all
the dishes, does not drop them, and gets the table cleared promptly for the
waiter or waitress. Similarly, an individual who cannot tolerate being
supervised may not be able to work even in the absence of close
supervision; the knowledge that one's work is being judged and evaluated,
even when the supervision is remote or indirect, can be intolerable for some
mentally impaired persons.
SSR 85-15, 1985 WL 56857, at *6. In other words, an ALJ must consider how a
claimant’s stress tolerance could impact her ability to perform the specific job or jobs
that otherwise fit her RFC profile.
The ALJ in this case failed to undertake an individualized inquiry in concluding
that Elmer could perform work as a warehouse support worker or as a garnisher. See
Docket Item 8 at 30-31 (relying on the VE’s testimony that Elmer could perform these
jobs even with the limitation of “low stress work” without further explanation of how her
individualized stress tolerance might impact her performance).
Moreover, this failure was likely harmful to Elmer’s disability determination. Cf.
Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (declining remand where “application
of the correct legal principles to the record could lead [only to the same] conclusion”).
Elmer testified that her anxiety attacks were triggered when she left her house alone.
Docket Item 8 at 45-46. She explained that it “takes [her] about a week of mental
preparation to . . . leave [her] house for something” because she has “to convince
[her]self that it’s okay and nothing scary is going to happen” and because she becomes
nauseated whenever she leaves the house. Id. at 45; see also id. at 52 (Elmer
testifying that she “[v]ery rarely” takes the bus because she fears “trap[ping] [her]self in
there with a bunch of strangers” and “end[s] up getting sick” and needing to “get off the
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bus before [her] stop”). She also explained that for that reason she did not go to the
grocery store alone.
Id.
To the extent the ALJ may have wholly rejected Dr. Brownfield’s stress-based
limitations on the grounds that Elmer “ha[d] not been compliant with treatment
recommendations,” id. at 29, substantial evidence does not support that conclusion.
Elmer received semi-regular counseling over a span of at least nineteen months. See
id. at 252-425 (documenting 23 counseling sessions with Ms. Chiappone and six
medication management appointments with Drs. Wagner, Reddy, and Beneski-Barlow
between November 2013 and June 2015). Although Elmer did have gaps in treatment,
she reported contemporaneously that those gaps were due to transportation and
insurance issues, id. at 252, and she testified at her hearing that she struggled to leave
her house even for therapy, id. at 51.
If anything, Elmer’s struggle to obtain consistent treatment underscores the
importance of considering her individual stress tolerance in determining whether she is
disabled. Elmer’s anxiety over leaving the house and interacting with others—stressors
that could be expected to impact her ability to meet the demands of the VE’s proposed
work—underlay her intermittent treatment record. The VE explained that a warehouse
support worker and a garnisher would need to “frequently interact with coworkers and
supervisors” and “have occasional contact with the general public.” Id. at 57. In fact,
the VE testified that if Elmer were “unable to work in a low stress environment” or “could
not have any contact with coworkers or supervisors,” she could not perform either of
those jobs. Id. at 58, 62. Accordingly, remand is appropriate so that the ALJ can
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properly consider, at step five of the sequential evaluation process, whether Elmer could
perform any of the available jobs given her individualized stress tolerance.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 13, is DENIED, and Elmer’s motion for judgment on the
pleadings, Docket Item 10, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED, and the matter is REMANDED for further
administrative proceedings consistent with this decision.
SO ORDERED.
Dated:
November 14, 2019
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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