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finding that meaningful judicial review was precluded when the Court was “left to speculate” about the ALJ's reasoning
Summary of this case from Kimberly A. v. Comm'r of Soc. Sec.Opinion
1:19-CV-00569 EAW
2021-03-26
LAURA C., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Taylor Christine Schubauer, William C. Bernhardi Law Offices, William C. Bernhardi, West Seneca, NY, for Plaintiff. Michelle Lynn Christ, Oona Marie Peterson, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Taylor Christine Schubauer, William C. Bernhardi Law Offices, William C. Bernhardi, West Seneca, NY, for Plaintiff.
Michelle Lynn Christ, Oona Marie Peterson, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Laura C. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for disability insurance benefits ("DIB"). (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. 9; Dkt. 15), and Plaintiff's reply (Dkt. 16). For the reasons discussed below, Plaintiff's motion (Dkt. 9) is granted in part, the Commissioner's motion (Dkt. 15) is denied, and the case is remanded to the Commissioner for further proceedings consistent with this Decision and Order.
BACKGROUND
Plaintiff protectively filed her application for DIB on June 25, 2015. (Dkt. 5 at 14, 86). In her application, Plaintiff alleged disability beginning July 8, 2011, due to "IBD—Crohn's Disease; Dysautonomia—Neurocardiogenic Syncope; Vertigo; Anxiety; Panic Attacks; Depression; Gastric Ulcers ; Acid Reflux Disease; Insomnia; Overactive Bladder." (Id. at 14, 87-88). Plaintiff's application was initially denied on December 7, 2015. (Id. at 14, 102-13). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Melissa Lin Jones in Buffalo, New York, on March 1, 2018. (Id. at 14, 35-85). At the hearing, Plaintiff amended her alleged onset date to April 25, 2015. (Id. at 38-39). On April 11, 2018, the ALJ issued an unfavorable decision. (Id. at 11-24). Plaintiff requested Appeals Council review; her request was denied on March 6, 2019, making the ALJ's determination the Commissioner's final decision. (Id. at 5-7). 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.
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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. § 404.1520(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. § 404.1520(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. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), 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. § 404.1520(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. § 404.1520(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. § 404.1520(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); see also 20 C.F.R. § 404.1560(c).
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. § 404.1520. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2018. (Dkt. 5 at 16). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since April 25, 2015, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "Crohn's disease, irritable bowel syndrome, vertigo and migraine headaches." (Id. ). The ALJ further found that Plaintiff's medically determinable impairments of overactive bladder, gastric ulcers, acid reflux, anxiety, and depressive disorder were non-severe. (Id. at 17).
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 18). The ALJ particularly considered the criteria of Listings 5.06 and 5.08 in reaching her conclusion. (Id. at 18).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except:
she can only occasionally repetitively bend, squat, lift, or carry, and she cannot work at unprotected heights or around heavy moving mechanical parts.
(Id. at 19). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 22).
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 marker, information clerk, and checker. (Id. at 22-23). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 23-24).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the Commissioner, arguing that: (1) the ALJ erred by failing to assess Plaintiff's neurocardiogenic syncope at step two of the sequential evaluation; (2) the ALJ erred in finding that Plaintiff can perform work on a "regular and continuing basis" due to a combination of symptoms from Crohn's disease and migraine headaches; and (3) the mental RFC is not supported by substantial evidence because the ALJ's determination that Plaintiff's anxiety and depressive disorder were non-severe impairments is not supported by the record and, even if Plaintiff's anxiety and depressive disorder were properly found to be non-severe impairments, remand is warranted because the RFC does not include any mental limitations. (Dkt. 9-1 at 20-30). For the reasons discussed below, the Court concludes that the ALJ erred in her assessment of the RFC, and this error requires remand for further administrative proceedings.
A. Assessment of the RFC
"In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations which could interfere with work activities on a regular and continuing basis." Pardee v. Astrue , 631 F. Supp. 2d 200, 210 (N.D.N.Y. 2009) (citing 20 C.F.R. § 404.1545(a) ). The ALJ is tasked with "weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole." Matta v. Astrue , 508 F. App'x 53, 56 (2d Cir. 2013). An ALJ's conclusion need not "perfectly correspond with any of the opinions of medical sources cited in his decision." Id. However, an ALJ is not a medical professional, and "is not qualified to assess a claimant's RFC on the basis of bare medical findings." Ortiz v. Colvin , 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018) (quotation omitted). In other words:
An ALJ is prohibited from ‘playing doctor’ in the sense that ‘an ALJ may not substitute his own judgment for competent medical opinion.... This rule is most often employed in the context of the RFC determination when the claimant argues either that the RFC is not supported by substantial evidence or that the ALJ has erred by failing to develop the record with a medical opinion on the RFC.
Quinto v. Berryhill , No. 3:17-cv-00024 (JCH), 2017 WL 6017931, at *12 (D. Conn. Dec. 1, 2017) (citations omitted). "[A]s a result[,] an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence." Dennis v. Colvin , 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016) (quotation and citation omitted).
1. Assessment of Limitations Caused by Plaintiff's Crohn's Disease
Plaintiff contends that the ALJ erred in finding that she can perform work on a "regular and continuing basis," based on a combination of limitations caused by symptoms of her Crohn's disease and migraine headaches, which the ALJ omitted from her discussion of the hearing testimony. (Dkt. 9-1 at 23). The Commissioner offered no specific response to this argument in his motion for judgment on the pleadings.
At the administrative hearing, Plaintiff testified that when she is having a "good day," she is able to do some "basic cleaning," such as wiping the counters, sweeping, cooking, laundry, and grocery shopping (Dkt. 5 at 53-54), but on a "bad day," when she is sick, she spends her time laying down and using a heating pad (id. at 57). Plaintiff's Crohn's disease was particularly disruptive to her schedule, including that "flares" in her Crohn's disease caused her to drop out of school in 2014 because she missed many classes and required surgery (id. at 61), she experiences nausea, vomiting, and abdominal pain (id. at 61, 63), and when she worked at her prior job at Elderwood, she left work early or was not going to work approximately five days per month due to symptoms of Crohn's (id. at 62-63). Plaintiff further testified that she needs to be in the bathroom almost every hour (id. at 64), that she limits her time away from her home due to Crohn's disease (id. at 65), and that approximately four days per week, she experiences abdominal pain so severe that she is unable to walk (id. at 65-66). Plaintiff testified that she is also limited by migraine headaches which occur four times per week and cause her to lay down for a few hours (id. at 67-68), and that she experiences vertigo and syncope, which has caused her to faint on five occasions (id. at 69-70). Even on "good days," Plaintiff has to lay down for at least "a couple of hours." (Id. at 78).
The ALJ found that the evidence in the record did not support a loss of functioning, for the following reasons: (1) Plaintiff's described daily activities suggest that she does not have debilitating symptoms; (2) although Plaintiff received treatment for her ailments, with appropriate treatment her symptoms largely resolved or were significantly reduced, including that her condition improved following colon surgery and with medications; (3) the record does not contain any non-conclusory opinions from treating or examining physicians indicating that Plaintiff is unable to work; (4) the record reveals that Plaintiff's allegedly disabling impairments were present at approximately the same level of severity prior to the amended alleged onset date; and (5) Plaintiff displayed no evidence of debilitating symptoms while testifying at the hearing. (Id. at 21).
As an initial matter, the ALJ's explanation is not entirely supported by the record and is inadequate considering the evidence that Plaintiff continues to experience ongoing symptoms of her impairments, including Crohn's disease. The fact that Plaintiff was able to sit through her disability hearing—which, according to the record, lasted approximately one hour—does not support her ability to perform work on a regular and continuing basis. See Rivera v. Comm'r of Soc. Sec. , No. 19-CV-4630(LJL)(BCM), 2020 WL 8167136, at *21 (S.D.N.Y. Dec. 30, 2020) (while "[a]n ALJ may of course rely on his observation of the claimant's ‘demeanor’ in determining whether that claimant's testimony is truthful ... [w]hat he may not do is use the administrative hearing ... to make his own ‘lay assessment’ of the claimant's general mental functioning, which amounts to ‘a variant of the disfavored sit and squirm test.’ " (citations omitted)), adopted , 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). Further, the Court is not clear as to what "daily activities" Plaintiff described that the ALJ found supported her ability to work on a regular and continuing basis, as Plaintiff testified that she has to lay down for at least two hours even on good days and that her Crohn's disease is highly disruptive to her schedule. Likewise, the record does not support that Plaintiff's condition improved following her colon surgery. As explained in the written determination, in September 2015, Plaintiff had a small bowel obstruction and underwent a small bowel resection and removal of scar tissue, appendectomy, and fistula repair. (Dkt. 5 at 20). Although Plaintiff initially reported improvement (Dkt. 5-2 at 140), in July 2016, she reported that she was experiencing a possible flare with increased pain and diarrhea (Dkt. 5-1 at 129). A pathology report from July 2016 revealed mild chronic gastritis and mild chronic inflammation (id. at 130), a colonoscopy showed stricture in the cecum (id. at 136), and an endoscopy showed esophagitis at the gastroesophageal junction ( id. at 138-40). At two appointments in December 2017, Plaintiff reported that, over the prior two months, she had abdominal pain, nausea, vomiting, and diarrhea. (Dkt. 5-2 at 111-12, 119-20).
In addition to the fact that the ALJ's explanation is insufficient, it is not clear to the Court how the RFC accounts for limitations caused by Plaintiff's Crohn's disease and IBS, which the ALJ determined to be severe impairments. The RFC does contain some physical limitations—specifically, the RFC incorporates the opinion of the consultative examiner, Donna Miller, D.O., that Plaintiff has a mild limitation for repetitive bending, squatting, lifting, and carrying (see Dkt. 5-1 at 114), by limiting Plaintiff to "occasionally" performing those activities. However, the ALJ did not explain how this limitation accounts for symptoms caused by Plaintiff's Crohn's disease and IBS, such as her need to use the bathroom frequently, nausea, vomiting, and diarrhea. While the Court presumes that minimal bending, squatting, lifting, and carrying may account for Plaintiff's reported abdominal pain, or perhaps may address her complaints of migraine headaches and vertigo, or could account for her past bowel surgery, due to the lack of any explanation by the ALJ on this point, the Court is left to speculate as to how she accounted for limitations caused by Plaintiff's Crohn's disease and IBS. This precludes any meaningful review by the Court. See Cecelia J. v. Comm'r of Soc. Sec. , No. 19-CV-1483-HBS, 2021 WL 431673, at *3 (W.D.N.Y. Feb. 8, 2021) ("It is well-established that an ALJ must express the reasons underlying his findings with enough clarity to afford ‘meaningful judicial review.’ " (citation omitted)).
Accordingly, remand is required. On remand, the ALJ must include in the RFC limitations accounting for Plaintiff's Crohn's disease and IBS, and specifically explain how the RFC accounts for these impairments.
2. Assessment of the Mental RFC
Plaintiff also contends that the ALJ's mental RFC is not supported by substantial evidence because it does not include any mental limitations. (Dkt. 9-1 at 25-30). In response, the Commissioner argues that the opinions offered by Plaintiff's social worker and psychiatrist do not support that Plaintiff's anxiety and depression were severe impairments and also suggests that the opinions are internally inconsistent. (Dkt. 15-1 at 9-10).
As noted above, the RFC contains no mental limitations. (Id. at 19). In assessing the RFC, the ALJ gave "very little weight" to the February 2018 opinion of Plaintiff's treating therapist, Ms. Gokey, including her opinion that Plaintiff was unable to complete a normal workday, because the treating relationship was brief and the opinion contained inconsistencies. (Id. at 21-22). Further, the ALJ gave "no to very little weight" to the February 28, 2018 opinion offered by Plaintiff's treating psychiatrist, Alfred Belen, III, M.D., who assessed Plaintiff's ability to perform unskilled work and concluded that she had "a complete loss of ability" to perform the following functions: remember work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; maintain attention for extended periods of two-hour segments; sustain an ordinary routine without special supervision; make simple work-related decisions; complete a normal workday and workweek; ask simple questions or request assistance; accept instructions or respond appropriately to criticism from supervisors; respond appropriately to changes in a routine work setting; and be aware of normal hazards and take appropriate precautions. (Id. at 22; see also Dkt. 5-3 at 74-76). Dr. Belen explained that Plaintiff's limitations were "variable based on levels of anxiety and stability of mood," and also stated, "[p]lease contact my office for further explanation." (Dkt. 5-3 at 75). Dr. Belen's opinion indicates that Plaintiff began treating with him on July 6, 2017 (id. at 76), and therefore he had been treating her for approximately seven months at the time he rendered his opinion. The ALJ found that Dr. Belen's opinion "sharply contrasts the evidence of record, including the fact that the claimant is able to follow instructions regarding her medical care and take prescription medications in an appropriate manner. In addition this conclusion is not supported by Dr. Santarpia." (Dkt. 5 at 22). To that end, the ALJ gave "great weight" to the November 3, 2015 opinion of consultative examiner Susan Santarpia, Ph.D. (Id. at 17; see also Dkt. 5-1 at 106-09). Dr. Santarpia examined Plaintiff and found that she had a mild impairment for performing complex tasks independently. (Dkt. 5-1 at 108).
As explained above, the ALJ ultimately found that Plaintiff's anxiety and depression were non-severe impairments because they did not cause "more than minimal limitation in the claimant's ability to perform basic mental work activities.... Although there are mentions of depression and anxiety and an added diagnosis of anxiety disorder since 2015, she did not start outpatient treatment until late 2017." (Dkt. 5 at 17). In making this finding, the ALJ examined the four broad areas of mental functioning, and found that Plaintiff had no limitation in understanding, remembering, or applying information and adapting or managing herself, and a mild limitation in interacting with others and concentrating, persisting, or maintaining pace. (Id. at 17-18).
Given the above-mentioned evidence, the Court concludes that the ALJ's failure to include any mental limitations in the RFC, or to provide an explanation for her failure to do so, was error. Putting aside that Plaintiff's treating psychiatrist opined that she had serious mental limitations, "even if this Court concluded that substantial evidence supports the ALJ's finding that [Plaintiff's] mental impairment was nonsevere, it would still be necessary to remand this case for further consideration because the ALJ failed to account [for Plaintiff's] mental limitations when determining her RFC," as "[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) (holding that, after the ALJ found that plaintiff's depression was a non-severe impairment, ALJ committed legal error by not "accounting for any of the limitations arising from her mental impairment that were established by substantial evidence in the record"); see also Rosado v. Saul , No. 19 Civ. 8073(PED), 2021 WL 22153, at *18 (S.D.N.Y. Jan. 4, 2021) ("Even though the ALJ found that Plaintiff had no severe mental impairments at the second step of the sequential analysis, she was still obligated to assess the effects of Plaintiff's non-severe mental impairments when determining her RFC.... The record as a whole does not substantially support the ALJ's finding as to the absence of any mental impairments." (internal citation omitted)). Here, the ALJ engaged in no meaningful discussion of the limitations caused by Plaintiff's non-severe mental impairments in connection with assessing the RFC, other than to wholesale reject the opinions provided by Plaintiff's treating mental health providers. Further, the ALJ did not explain why she failed to incorporate Dr. Santarpia's opinion that Plaintiff had at least some limitation for performing complex tasks, despite giving that opinion "great weight." Accordingly, remand is required. On remand, the ALJ should ensure that the RFC accounts for both Plaintiff's severe and non-severe impairments, including her mental limitations, and the ALJ must adequately explain how she arrived at those limitations.
B. Plaintiff's Remaining Argument
As set forth above, Plaintiff has identified an additional reason why she 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. 9) 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. 15) is denied.
SO ORDERED.