Opinion
1:20-CV-01320 EAW
2022-07-11
CIARA B., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Vernon Norwood, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Vernon Norwood, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Ciara B. ("Plaintiff") brings this action pursuant to Titles II and 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 her applications for child's disability insurance benefits ("DIB") and 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. 12; Dkt. 13), and Plaintiff's reply (Dkt. 14). For the reasons discussed below, Plaintiff's motion (Dkt. 12) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion (Dkt. 13) is denied.
BACKGROUND
Plaintiff protectively filed her application for DIB on February 27, 2018, and an application for SSI on January 12, 2018. (Dkt. 11 at 19, 91-92). In her applications, Plaintiff alleged disability beginning November 1, 2016, due to multiple sclerosis, blurred vision, and loss of coordination. (Id. at 19, 70, 81). Plaintiff's applications were initially denied on April 25, 2018. (Id. at 19, 97). A video hearing was held before administrative law judge ("ALJ") Ellen Parker Bush on October 25, 2019. (Id. at 19, 35-68). Plaintiff appeared in Buffalo, New York, and the ALJ presided over the hearing from Lawrence, Massachusetts. (Id. ). On December 4, 2019, the ALJ issued an unfavorable decision. (Id. at 16-30). Plaintiff requested Appeals Council review; her request was denied on July 24, 2020, 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.
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), 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. §§ 404.1520(c), 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. §§ 404.1520(d), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. §§ 404.1509, 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. §§ 404.1520(e), 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. §§ 404.1520(f), 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. §§ 404.1520(g), 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); 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 and 416.920. Initially, the ALJ determined that Plaintiff was born on January 10, 1998, and had not attained the age of 22 as of November 1, 2016, the alleged onset date. (Dkt. 11 at 21). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since November 1, 2016, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairment of multiple sclerosis. (Id. at 22). The ALJ further found that Plaintiff's medically determinable impairments of history of optic neuritis, asthma, and allegations of neurocognitive disorder, were non-severe. (Id. at 22-24).
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 24). The ALJ particularly considered the criteria of Listings 2.02, 3.03, 11.09, and 12.02, in reaching her conclusion. (Id. at 24).
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) and 416.967(b), except:
she can stand and walk for a total of 4 hours in an 8-hour workday; no more than occasional climbing of ramps and stairs; no climbing of ladders, ropes, and scaffolds; no more than occasional balancing, stooping, kneeling, and crouching; no crawling; no more than occasional overhead reaching; she must avoid moderate exposure to high temperatures; she must avoid concentrated exposure to respiratory irritants, unprotected heights, vibrations, vibratory tools, and machinery with external moving parts.
(Id. at 24-25). At step four, the ALJ found that Plaintiff has no past relevant work. (Id. at 29).
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 laundry folder, garment folder, and package sorter. (Id. at 29-30). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 30).
II. Remand of This Matter for Further Administrative Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ failed to develop the record, (2) the ALJ erred in assessing Plaintiff's neurocognitive disorder as non-severe, and (3) the RFC is based on lay opinion and is not supported by substantial evidence. (Dkt. 12-1 at 1). Because the ALJ did not properly assess Plaintiff's mental RFC, the matter is remanded for further administrative proceedings.
Although framed as three separate arguments, Plaintiff's primary issue with the ALJ's decision is the analysis of Plaintiff's mental limitations. Turning first to the argument relating to the ALJ's assessment of Plaintiff's neurocognitive disorder, 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. § 404.1520(c). The Commissioner's Regulations define "basic work activities" as "the abilities and aptitudes necessary to do most jobs," including "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling"; "[c]apacities for seeing, hearing, and speaking"; "[u]nderstanding, carrying out, and remembering simple instructions"; "[u]se of judgment"; "[r]esponding appropriately to supervision, co-workers and usual work situations"; and "[d]ealing with changes in a routine work setting." Id. § 404.1522(b).
"The claimant bears the burden of presenting evidence establishing severity." Taylor v. Astrue , 32 F. Supp. 3d 253, 265 (N.D.N.Y. 2012), adopted , 32 F. Supp. 3d 253 (N.D.N.Y. 2012). 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).
At step two, the ALJ considered Plaintiff's neurocognitive disorder and explained her reasoning as to why she did not find it to be a severe impairment. The ALJ noted that although neurology records documented clinical observations of a mild decrease in attention and concentration and contained referrals for neuropsychiatric treatment, there was also a lack of neuropsychiatric testing confirming a cognitive disorder, or showing dedicated medical treatment for alleged cognitive symptoms. (Dkt. 11 at 22-23). The ALJ also noted that Plaintiff returned to college in May 2019 and received assistive devices through the state Vocational Rehabilitation service, consisting of a specialized computer keyboard, arm and foot rests, and monitors to accommodate her physical multiple sclerosis symptoms, and concluded that "[t]he fact that these are the only accommodations that she receives does not persuade me that she experiences more than mild cognitive deficits." (Id. at 23). The ALJ also considered the four broad areas of mental functioning, including understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself, and concluded that there was "no indication that the claimant has more than mild limitations" in those areas. (Id. ).
Plaintiff points to other evidence in the record—specifically her testimony that she has difficulty staying on task and memory deficits, and that her treating physician noted the need for neurocognitive testing—which she argues demonstrates that her neurocognitive disorder is a severe impairment. (Dkt. 12-1 at 6, 20). The fact that there is competing evidence in the record relating to a specific impairment does not render the ALJ's determination erroneous. Rather, in deciding a disability claim, an 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) ; see also McIntyre v. Colvin , 758 F.3d 146, 149 (2d Cir. 2014) ("If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld."). The Court need not resolve the severity issue because, as further explained below, the Court finds there was insufficient evidence in the record for the ALJ to properly assess Plaintiff's mental limitations.
Simply because the ALJ concluded that Plaintiff's neurocognitive disorder was a non-severe impairment does not relieve her of her duty to consider it 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).
Here, the ALJ assessed Plaintiff's neurocognitive disorder as non-severe and found that Plaintiff had no work-related mental functional limitations. In making these findings, the ALJ cited to Plaintiff's testimony at the administrative hearing that she experiences difficulties with memory and focus due to her multiple sclerosis. (Dkt. 11 at 25). The ALJ also recognized that "neurology records document clinical observations of a mild decrease in mentation, specifically in attention and concentration" (id. at 22), noted several referrals for neuropsychiatric testing (id. at 23), and recognized that Plaintiff's multiple sclerosis could "be expected to result in some concentration and attention deficits" (id. at 26). The ALJ then assessed, without the benefit of opinion evidence from an acceptable medical source, an RFC containing no mental limitations to address these known deficits in mental functioning, noting that Plaintiff's constitutional and psychiatric status have been unremarkable for deficits, and explaining that "as noted in the previous section of this decision, the record does not contain any neuropsychiatric evaluations confirming any specific deficits in mental functioning as a result of multiple sclerosis." (Id. ). In light of other evidence in the record supporting that Plaintiff does experience at least mild mental deficits, including in maintaining attention and concentration, this was error.
In reaching this conclusion, the Court emphasizes two points. First, the record as it pertains to Plaintiff's mental impairments is not well-developed, and the ALJ clearly recognized in the written determination the lack of a formal mental evaluation. (See Dkt. 11 at 23 (noting lack of neuropsychiatric testing in the record); id. at 26 ("the record does not contain any neuropsychiatric evaluations"); see also id. at 23-24 (discussing opinion evidence in the record)). "Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Perez v. Chater , 77 F.3d 41, 47 (2d Cir. 1996). Specifically, the ALJ must "investigate and develop the facts and develop the arguments both for and against the granting of benefits." Vincent v. Comm'r of Soc. Sec. , 651 F.3d 299, 305 (2d Cir. 2011). "The ALJ must ‘make every reasonable effort’ to help the claimant get medical reports from his or her medical sources as long as the claimant has permitted the ALJ to do so." Sotososa v. Colvin , No. 15-CV-854-FPG, 2016 WL 6517788, at *3 (W.D.N.Y. Nov. 3, 2016) (quoting Pratts v. Chater , 94 F.3d 34, 39 (2d Cir. 1996) ). Instead of relying on the void in the record to make her own determination that Plaintiff's attention and concentration deficits would not cause work-related functional limitations, the ALJ should have, at a minimum, secured a consulting physician to examine Plaintiff and to render an opinion as to her mental functional limitations. See Falcon v. Apfel , 88 F. Supp. 2d 87, 91 (W.D.N.Y. 2000) ("It is considered reversible error for an ALJ not to order a consultative examination when such an evaluation is necessary for him to make an informed decision.") (quotation omitted).
The Commissioner argues that the Second Circuit has not held that an ALJ must rely on a medical source opinion in assessing specific RFC limitations. (Dkt. 13-1 at 13). However, this case does not present the situation where the ALJ rejects a physician's medical assessment, but relies on underlying treatment notes providing contemporaneous medical assessments relevant to the plaintiff's ability to perform sustained gainful activity. Here, the ALJ did not merely disagree with a medical assessment or evaluation; rather, no acceptable medical source provided an opinion as to Plaintiff's mental functional limitations.
The second point is that the Court is cognizant that where the record reflects only minor impairments, the ALJ may, in her discretion, assess an RFC in the absence of opinion evidence. See Wilson v. Colvin , No. 13-CV-6286P, 2015 WL 1003933, at *21 (W.D.N.Y. Mar. 6, 2015) ("under certain circumstances, particularly where the medical evidence shows relatively minor physical impairment, an ALJ permissibly can render a common sense judgment about functional capacity even without a physician's assessment....") (internal quotations and citation omitted). However, "the leeway given to ALJs to make ‘common sense judgments’ does not typically extend to the determination of mental limitations, which are by their very nature ‘highly complex and individualized.’ " Lilley v. Berryhill, 307 F. Supp. 3d 157, 161 (W.D.N.Y. 2018) (quoting Nasci v. Colvin , No. 6:15-CV-0947 (GTS), 2017 WL 902135 at *9 (N.D.N.Y. Mar. 7, 2017) ); see also Deshotel v. Berryhill, 313 F. Supp. 3d 432, 435 (W.D.N.Y. 2018) (ALJ's ability to make common sense judgments does not extend to assessment of mental limitations). Accordingly, the matter is remanded for further proceedings so that the ALJ may properly assess Plaintiff's mental limitations relating to her neurocognitive disorder.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 12) 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. 13) is denied.
SO ORDERED.