Opinion
6:20-CV-06703 EAW
2022-09-22
FELIX S., Jr., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kelly Elizabeth Laga-Sciandra, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Jennifer J. Selby, Social Security Administration Office of the General Counsel, Dallas, TX, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant.
Kelly Elizabeth Laga-Sciandra, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff. Jennifer J. Selby, Social Security Administration Office of the General Counsel, Dallas, TX, Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendant. DECISION AND ORDER ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Felix S., Jr. ("Plaintiff") brings this action pursuant to Title XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his application for supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 15; Dkt. 16), and Plaintiff's reply (Dkt. 17). For the reasons discussed below, Plaintiff's motion (Dkt. 15) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion (Dkt. 16) is denied.
BACKGROUND
Plaintiff protectively filed his application for SSI on May 11, 2018. (Dkt. 13 at 20, 87). In his application, Plaintiff alleged disability beginning January 1, 2015, due to high blood pressure, heart problems, arthritis, asthma, bipolar disorder, anxiety, nerve damage, high cholesterol, sleep problems, and vision problems. (Dkt. 13 at 20, 76). Plaintiff's application was initially denied on August 13, 2018. (Id. at 20, 91-102). A video hearing was held before administrative law judge ("ALJ") Dale Black-Pennington on November 7, 2019. (Id. at 20, 36-74). Plaintiff appeared in Greece, New York, and the ALJ presided over the hearing from Orlando, Florida. (Id.). On December 16, 2019, the ALJ issued an unfavorable decision. (Id. at 17-31). Plaintiff requested Appeals Council review; his request was denied on July 14, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-10). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 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." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he 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)).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since May 11, 2018, the application date. (Dkt. 13 at 22).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "high blood pressure, heart disorder, arthritis, obesity, and asthma." (Id.). The ALJ further found that Plaintiff's medically determinable impairments of sleep and eye disorder, bipolar disorder, generalized anxiety behavior, and major depressive disorder were non-severe. (Id. at 23-24).
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 Listing. (Id. at 25). The ALJ particularly considered the criteria of Listings 1.02, 1.04, 3.03, and 4.04 in reaching his conclusion. (Id. at 25-26).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), except that:
he can lift and carry up to 20 pounds occasionally; and 10 pounds frequently; stand and walk six hours in an eight hour workday; sit six hours in an eight hour workday; requires the ability to change position for discomfort throughout the workday; unlimited pushing and/or pulling; occasionally climb ramps and/or stairs, stoop, kneel, crouch, and crawl; occasional left overhead reaching; and must avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation, and other known respiratory irritants.(Id. at 26). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 30).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") 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 the representative occupations of housekeeping cleaner, cafeteria attendant, and routing clerk. (Id. at 30-31). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 31).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to reverse or, in the alternative, to remand this matter to the Commissioner, arguing that (1) the ALJ did not properly evaluate the severity of Plaintiff's mental impairments and did not include any mental limitations in the RFC, and (2) the vocational expert's testimony was inconsistent with the Dictionary of Occupational Titles, and the ALJ failed to resolve this conflict as it related to limitations on Plaintiff's ability to reach. (Dkt. 15-1 at 1, 14-29).
A. Evaluation of Plaintiff's Mental Impairments
Plaintiff's argument relating to the ALJ's assessment of his mental impairments is two-fold. Plaintiff challenges the ALJ's finding that his mental conditions are non-severe impairments, and he also challenges the ALJ's assessment of the opinion evidence relating to his mental functioning. In response, the Commissioner contends that the ALJ properly found that Plaintiff's mental impairments were non-severe impairments and any error was harmless, because the ALJ considered Plaintiff's mental impairments in assessing the RFC, and also that the ALJ properly evaluated the opinion evidence in light of the new regulations. (See Dkt. 16-1 at 14-22).
At step two of the disability analysis, the ALJ determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. 20 C.F.R. § 416.920(c). "The following are examples of 'basic work activities': 'walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and remembering simple instructions . . . [u]se of judgment . . . [r]esponding appropriately to supervision, coworkers and usual work situations.' " Taylor v. Astrue, 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012) (citations omitted), adopted, 32 F. Supp. 3d 253 (N.D.N.Y. 2012).
"The claimant bears the burden of presenting evidence establishing severity." Id. Step two's "severity" requirement is de minimis and is meant only to screen out the weakest of claims. Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). However, despite this lenient standard, the " 'mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment' is not, by itself, sufficient to render a condition 'severe.' " Taylor, 32 F. Supp. 3d at 265 (quoting Coleman v. Shalala, 895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Rather, "to be considered severe, an impairment or combination of impairments must cause 'more than minimal limitations in [a claimant's] ability to perform work-related functions.' " Windom v. Berryhill, No. 6:17-cv-06720-MAT, 2018 WL 4960491, at *3 (W.D.N.Y. Oct. 14, 2018) (quoting Donahue v. Colvin, No. 6:17-CV-06838(MAT), 2018 WL 2354986, at *5 (W.D.N.Y. May 24, 2018)) (alteration in original).
As explained above, the ALJ found that Plaintiff's bipolar disorder, generalized anxiety behavior, and major depressive disorder were non-severe impairments. (Dkt. 13 at 23). In arriving at this conclusion the ALJ examined the four broad areas of mental functioning, finding that Plaintiff had mild limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and managing himself. (Id. at 23-24).
Simply because the ALJ concluded that Plaintiff's mental limitations were non-severe impairments does not relieve him of the duty to consider them in connection with assessing the RFC. Rather, an RFC determination "must account for limitations imposed by both severe and nonsevere impairments." Parker-Grose v. Astrue, 462 F. App'x 16, 18 (2d Cir. 2012); see also David Q. v. Comm'r of Soc. Sec., No. 20-CV-1207MWP, 2022 WL 806628, at *6 (W.D.N.Y. Mar. 17, 2022) (remanding for further proceedings where ALJ found that the plaintiff's depression was a non-severe impairment causing "mild" limitations in each of the four broad categories of functioning, but failed to properly consider or account for those limitations in the RFC). In formulating the RFC, the ALJ addressed opinion evidence relating to Plaintiff's mental functional limitations, including the opinion offered by Yu-Ying Lin, Ph.D., the consultative examiner; Plaintiff's treating providers, Alyssa DeCann, L.M.S.W. and Victoria Briggs, N.P.; and the DDS medical Consultant, L. Haus, Psy.D. (Id. at 28-29).
Dr. Lin examined Plaintiff on July 2, 2018. (Dkt. 13 at 321). After assessing Plaintiff's current functioning and performing a mental status examination, during which he found that Plaintiff had moderately impaired attention and concentration and impaired recent and remote memory skills (id. at 321-23), Dr. Lin opened as follows:
The claimant can understand, remember, or apply simple directions and instructions without limitation. He is mildly limited in understanding, remembering, or applying complex directions and instructions. He can use reason and judgment to make work related decisions without limitation. He can interact adequately with supervisors, co-workers, and the public without limitation. He is mildly limited in sustaining concentration and performing a task at a consistent pace. He can sustain an ordinary routine and regular attendance at work without limitation. He is moderately limited in regulating emotions, controlling behavior, and maintaining well-being. He can maintain personal hygiene and appropriate attire without limitation. He can be aware of normal hazards and take appropriate precautions
without limitation. Difficulties are caused by stress related problems.(Id. at 323-24). The ALJ found Dr. Lin's opinion to be "persuasive." (Id. at 29). The ALJ noted that it was "consistent and in line with the above-mentioned mental status examinations," including that Plaintiff was "generally mentally stable with appropriate mood and affect." (Id. at 28). The ALJ further noted that "[e]ven though Dr. Lin stated that the claimant had 'moderate' limitations regulat[ing] emotions and maintaining well-being, this does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis," noting that Plaintiff could "independently cook, shower, dress, and complete laundry." (Id. at 28-29).
On May 30, 2018, L.M.S.W. DeCann and N.P. Briggs completed a Mental Capacity Assessment, which assessed Plaintiff's mental limitations in the four broad areas of mental functioning. (Id. at 256-58). In the area of "understanding, remembering, or applying information," Plaintiff had mild-to-moderate limitations, including that he "often struggle[ed] with racing thoughts, difficulty concentrating, and lack of significant work history." (Id. at 256). In the area of "concentration, persistence, or maintaining pace," Plaintiff had mild-to-moderate limitations, including that he "struggle[ed] with concentration, racing thoughts, and task completion." (Id. at 257). For "adapting and managing one-self," Plaintiff had mild-to-moderate limitations, including that he struggled to adapt to changes and with his anxiety response. (Id.). Finally, in "interacting with others," Plaintiff had mild-to-moderate limitations, including that he "struggle[ed] with interpersonal relations due to anxiety, hyperactivity, and mood changes." (Id. at 258). The ALJ found that this opinion was "not persuasive," noting that "[t]his opinion of moderate limitation is not supported by the already mentioned mental status examinations. For example, as stated mental health treatment notes showed no significant changes and mental status examinations revealed normal eye contact, speech, mood, affect, and unimpaired memory, attention, concentration, insight, and judgment." (Id. at 29).
Finally, Dr. Haus found that Plaintiff had up to mild limitations maintaining social functioning, performing activities of daily living, and maintaining concentration, persistence, or pace. (Id. at 28). The ALJ found this opinion to be persuasive because it was consistent and in line with the Plaintiff's mental status examinations. (Id.).
The problem with the ALJ's RFC assessment as it pertains to Plaintiff's mental limitations is that it is inconsistent with other findings relative to Plaintiff's mental functioning, and it does not account for Plaintiff's mild-to-moderate mental limitations. For example, despite the fact that the ALJ found that Plaintiff had "mild" mental limitations in several areas of mental functioning (see Dkt. 13 at 23-24), the RFC contains no limitations on Plaintiff's mental functioning, nor does the written determination adequately explain why the ALJ did not include any such limitations. Likewise, the ALJ's failure to include mental limitations in the RFC is inconsistent with his assessment of the opinion offered by Dr. Lin, who found that Plaintiff had mild-to-moderate limitations for mental functioning. Although the ALJ states that he declined to adopt Dr. Lin's opinion relating to Plaintiff's ability to regulate emotions and maintain well-being because the record shows that Plaintiff can cook, shower, dress, and do laundry, the Court does not find the fact that Plaintiff is able to feed and groom himself to be contradictory to Dr. Lin's expert opinion that Plaintiff is unable to regulate emotions and maintain well-being, particularly in light of Dr. Lin's explanation that Plaintiff's limitations in that regard are caused by stress.
The ALJ's failure to adequately explain why he failed to include any limitations to account for Plaintiff's mild-to-moderate mental limitations is error. See David Q., 2022 WL 806628, at *6 (where ALJ found the plaintiff's depression was non-severe impairment causing "mild" limitations in each of the four broad categories of functioning, and consultative examiner found the plaintiff had mild to moderate mental limitations, which the ALJ found to be "persuasive," remanding because the ALJ did not include associated work-related mental limitations in RFC); Jatava L. v. Comm'r of Soc. Sec., No. 1:20-CV-00772-MJR, 2021 WL 4452265, at *5 (W.D.N.Y. Sept. 28, 2021) ("[E]ven if the record did support a step-two finding that plaintiff's mental impairments were non-severe, the ALJ was still obligated to consider those impairments in formulating the RFC . . . . [D]espite giving significant weight to Dr. Dolan's finding that plaintiff had mild mental health limitations in two areas of functioning, the ALJ did not include any mental limitations in the RFC nor did he explain the absence of such limitations."); see also Peters v. Comm'r of Soc. Sec., No. 18-cv-00144, 2020 WL 772364, at *4 (W.D.N.Y. Feb. 18, 2020) ("Defendant's argument that a finding of a non-severe impairment at step two automatically supports a finding that there are no mental work-related limitations is . . . unsuccessful"). Accordingly, remand is required. On remand, the ALJ must explain why he did not assess any mental limitations in the RFC.
B. Plaintiff's Remaining Argument
As set forth above, Plaintiff has identified an additional reason why he contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reasons previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach this issue. See, e.g., Bell v. Colvin, No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments "devoted to the question whether substantial evidence supports various determinations made by [the] ALJ" where the court had already determined remand was warranted); Morales v. Colvin, No. 13cv06844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the court need not reach additional arguments regarding the ALJ's factual determinations "given that the ALJ's analysis may change on these points upon remand"), adopted, 2015 WL 2137776 (S.D.N.Y. May 4, 2015).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 15) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 16) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.