Summary
In Jalessa H., Chief Judge Wolford found that the ALJ there erred in finding that claimant could occasionally interact with the public but could frequently interact with coworkers and supervisors despite assessing Dr. Gregory Fabiano's opinion that this claimant had marked limitation to interact with supervisors, coworkers, and the public, 580 F.Supp.3d at 8.
Summary of this case from Ann P. v. Comm'r of Soc. Sec.Opinion
1:20-CV-01180 EAW
2022-01-18
JALEESA H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Elizabeth Ann Haungs, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Graham Morrison, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Elizabeth Ann Haungs, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Graham Morrison, 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 Jaleesa H. ("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 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. 9; Dkt. 10), and Plaintiff's reply (Dkt. 12). For the reasons discussed below, Plaintiff's motion (Dkt. 9) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion (Dkt. 10) is denied.
BACKGROUND
Plaintiff protectively filed her applications for DIB and SSI on August 2, 2018. (Dkt. 8 at 35, 97, 109). In her applications, Plaintiff alleged disability beginning June 24, 2018, due to mental health issues. (Id. at 35, 98-99, 110-11). Plaintiff's applications were initially denied on October 24, 2018. (Id. at 35, 121-28). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Timothy M. McGuan in Buffalo, New York, on January 15, 2020. (Id. at 35, 69-96). On February 10, 2020, the ALJ issued an unfavorable decision. (Id. at 32-44). Plaintiff requested Appeals Council review; her request was denied on July 2, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-8). 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 N.Y. , 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 last met the insured status requirements of the Act on March 31, 2019. (Dkt. 8 at 37). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since June 24, 2018, the alleged onset date. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "depression, anxiety and substance abuse disorder." (Id. at 38).
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. ). The ALJ particularly considered the criteria of Listings 12.04 and 12.06 in reaching his conclusion. (Id. at 38-39).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels, but with the following non-exertional limitations:
can occasionally interact with the public; frequently interact with co-workers and supervisors; can do simple, unskilled work of a routine and repetitive nature.
(Id. at 39). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 42).
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 addresser, price marker, and hand packager. (Id. at 43). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 44).
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 failed to properly evaluate Plaintiff's medically determinable impairments of bipolar disorder with psychotic features, schizophrenia spectrum and other psychotic disorder, and schizophrenia at step two of the sequential analysis and beyond, and (2) the ALJ's consistency and supportability reasoning for opinion evidence was insufficient. (Dkt. 9-1 at 8-17). As further explained below, the Court finds that remand is required because the ALJ erred at step two of the sequential analysis and in evaluating the opinion evidence.
A. The Step Two Determination
Plaintiff's first argument is that the ALJ, in considering her mental impairments at step two of the sequential analysis, erred by not identifying her bipolar disorder with psychotic features, schizophrenia spectrum and other psychotic disorder, and schizophrenia, as severe or non-severe impairments. (Dkt. 9-1 at 8). In response, the Commissioner argues that the ALJ considered Plaintiff's schizophrenia because he recognized that Plaintiff's mental health issues were at the core of Plaintiff's disability application, the ALJ noted that at times Plaintiff was diagnosed with schizophrenia, and historically Plaintiff's mental condition was assessed under different diagnostic labels. (Dkt. 10-1 at 7-10).
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, co-workers 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). Further, a severe impairment must persist for at least twelve months. See 42 U.S.C. § 423(d)(1)(A) (disability involves impairment "which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months").
As explained above, at step two the ALJ found that Plaintiff suffered from the severe impairments of "depression, anxiety and substance abuse disorder." (Dkt. 8 at 38). The ALJ did not identify any additional impairments qualifying as non-severe or as not medically determinable impairments. However, Gregory Fabiano, Ph.D.—the only examining medical expert to offer an opinion as to Plaintiff's functional limitations—diagnosed Plaintiff not only with an anxiety disorder, but also with an "unspecified bipolar disorder with psychotic features" and "rule out unspecified schizophrenia spectrum disorder" following his examination of Plaintiff on September 30, 2018. (Dkt. 8 at 340). Despite Dr. Fabiano's diagnoses, the ALJ did not include bipolar disorder or schizophrenia disorder as severe impairments at step two, nor did he provide an explanation as to why he did not identify these diagnoses as impairments.
While an error at step two is harmless when an ALJ identifies other severe impairments, proceeds past step two, and considers the effects of all the claimant's impairments through the remainder of the sequential evaluation, see Reices-Colon v. Astrue , 523 F. App'x 796, 798 (2d Cir. 2013), it is not clear from the written determination that the ALJ undertook such an analysis. While the Commissioner is correct that the ALJ acknowledged that Plaintiff received schizophrenia diagnoses (see, e.g. , Dkt. 8 at 40 (discussing Plaintiff's testimony that she was diagnosed with bipolar schizophrenia ); id. at 41 (discussing January 2019 treatment records from ECMC, which listed a discharge diagnosis of schizophrenia )), there is no indication that the ALJ considered the effects or limitations caused by Plaintiff's bipolar or schizophrenia disorders when crafting the RFC. See Rivera v. Berryhill , No. 18-CV-122Sr, 2019 WL 3497810, at *3 (W.D.N.Y. Aug. 1, 2019) (ALJ's failure to acknowledge plaintiff's diagnosis of PTSD, as distinguished from the ALJ's analysis of plaintiff's mood and anxiety disorder, was not harmless because the ALJ did not address the symptoms caused by PTSD in RFC analysis). Rather, the RFC requires that Plaintiff "occasionally" interact with the public and "frequently" interact with co-workers and supervisors (see Dkt. 8 at 39), which is at odds with Plaintiff's reported symptoms caused by her schizophrenia. For example, Plaintiff testified at her administrative hearing that she was terminated from previous jobs because she was "hearing things" and because people disliked her, noting one incident where someone cut her hair. (See id. at 73-75). Plaintiff noted one occasion when she placed a television in her mother's bathtub, and she was admitted to the hospital after being found at a 7-Eleven in someone else's car. (Id. at 75-76). She also described being "paranoid," and reported feeling "zoned out" when she took her medication to address her bipolar and schizophrenia disorders. (Id. at 75, 77-78). As a result of her schizophrenia, Plaintiff reported that she feared other people, had problems interacting with others, and saw and heard things that were not there, including hearing "command voices." (Id. at 81-82). Plaintiff distinguished these symptoms from those caused by her anxiety, bipolar, and depressive disorders. (Id. at 83-85). Given the evidence in the record, the Court concludes that the ALJ did not adequately account for Plaintiff's diagnoses of bipolar disorder with psychotic features, schizophrenia spectrum and other psychotic disorder, and schizophrenia when formulating the RFC.
In sum, the ALJ failed to adequately explain why he did not find Plaintiff's bipolar disorder with psychotic features, schizophrenia spectrum and other psychotic disorder, and schizophrenia to be severe or non-severe impairments. Further, the record is not clear as to whether the ALJ considered the effects or symptoms of these diagnoses in formulating the RFC. Accordingly, remand is required on this basis, and on remand, the ALJ should adequately explain the basis for his step two determination.
B. Evaluation of Opinion Evidence
Plaintiff's second and final argument is that the ALJ erred in evaluating the opinion evidence in the record. (Dkt. 9-1 at 12). Plaintiff specifically challenges the ALJ's assessment of the opinion offered by Dr. Fabiano, the consultative examiner. (Id. at 12-17). In response, the Commissioner contends that the ALJ properly assessed the medical opinions in the record, including Dr. Fabiano's opinion, and the ALJ was entitled to credit the opinion offered by Dr. Juriga, the state agency medical consultant. (Dkt. 10-1 at 10-13).
The Commissioner's regulations relating to the evaluation of medical evidence were amended for disability claims filed after March 27, 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence , 2017 WL 168819, 82 Fed. Reg. 5844-01, at *5844 (Jan. 18, 2017). Because Plaintiff's claim was filed on August 2, 2018, the new regulations, codified at 20 C.F.R. §§ 404.1520c and 416.920c, apply.
Pursuant to the new regulations, the Commissioner "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Further, when a medical source provides one or more medical opinions, the Commissioner will consider those medical opinions from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of the applicable sections. Id. Those factors include: (1) supportability; (2) consistency; (3) relationship with the claimant, including the length of the treatment relationship, the frequency of examinations, purpose and extent of the treatment relationship, and the examining relationship; (4) specialization; and (5) any other factors that "tend to support or contradict a medical opinion or prior administrative medical finding." Id. at §§ 404.1520c(c), 416.920c(c).
When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. Id. at §§ 404.1520c(a), 416.920c(a). With respect to "supportability," the new regulations provide that "[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be." Id. at §§ 404.1520c(c)(1), 416.920c(c)(1). With respect to "consistency," the new regulations prove that "[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be." Id. at §§ 404.1520c(c)(2), 416.920c(c)(2).
The ALJ must articulate his consideration of the medical opinion evidence, including how persuasive he finds the medical opinions in the case record. Id. at §§ 404.1520c(b), 416.920c(b). "Although the new regulations eliminate the perceived hierarchy of medical sources, deference to specific medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still articulate how [he or she] considered the medical opinions and how persuasive [he or she] find[s] all of the medical opinions." Andrew G. v. Comm'r of Soc. Sec. , No. 3:19-CV-0942 (ML), 2020 WL 5848776, at *5 (N.D.N.Y. Oct. 1, 2020) (quotations and citation omitted). Specifically, the ALJ must explain how she considered the "supportability" and "consistency" factors for a medical source's opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may—but is not required to—explain how he considered the remaining factors. Id.
Dr. Fabiano evaluated Plaintiff on September 30, 2018. (Dkt. 8 at 337). After performing a mental status examination (id. at 338-39), Dr. Fabiano diagnosed Plaintiff with unspecified bipolar disorder with psychotic features; rule out unspecified schizophrenia spectrum disorder; and unspecified anxiety disorder (id. at 340). He also offered the following medical source statement relating to Plaintiff's ability to function in a work setting:
The claimant does not appear to have evidence of limitation in her ability to understand, remember, or apply simple directions and instructions; understand, remember, or apply complex directions and instructions; use reason and judgment to make work related decisions; sustain an ordinary routine and regular attendance at work; maintain personal hygiene and appropriate attire; and have an awareness of normal hazards and taking appropriate precautions. She appears to have marked limitations in her ability to interact adequately with supervisors, co-workers and the public; regulate emotions, control behavior, and maintain well-being. She appears to have mild to moderate limitations in her ability to sustain concentration and perform a task at a consistent pace.
The results of this examination appear to be consistent with psychiatric problems and this may significantly interfere with the claimant's ability to function on a daily basis.
(Id. ). The ALJ evaluated Dr. Fabiano's opinion, which he found "partially persuasive:"
I find Dr. Fabiano's opinion is generally consistent and supportive, but not to the extent that she has marked limitations with her ability to interact with others.
(Id. at 42). The ALJ did not explain why he discounted that portion of Dr. Fabiano's opinion, nor is it otherwise clear from the written determination. The RFC—which requires that Plaintiff "occasionally" interact with the public and "frequently" interact with co-workers and supervisors—is at odds with Dr. Fabiano's opinion that Plaintiff has a marked limitation in her ability to interact with supervisors, co-workers, and the public, regulate emotions, control behavior, and maintain well-being.
The Court finds that the ALJ erred in his assessment of Dr. Fabiano's opinion. Although under the new regulations the ALJ is not required to give specific evidentiary weight to a particular medical opinion, he is still required to articulate how he considered the medical opinion, including explaining how he considered the "supportability" and "consistency" factors. Here, the ALJ did not explain anything—instead, he made a conclusory statement that Dr. Fabiano's opinion was "generally consistent and supportive," without any explanation of how he assessed the opinion in connection with the consistency and supportability factors which, as explained above, is required by the new regulations. The lack of explanation is particularly problematic given the only other opinion evidence in the record, offered by Dr. Juriga, also recommends that Plaintiff perform work in a "low contact setting" (id. at 41, 116), and therefore also conflicts with the RFC.
The ALJ's conclusory analysis precludes the Court from undertaking meaningful review of his evaluation of Dr. Fabiano's opinion. See, e.g., Prieto v. Comm'r of Soc. Sec. , No. 20-CV-3941 (RWL), 2021 WL 3475625, at *13 (S.D.N.Y. Aug. 6, 2021) ("[R]ather than analyzing the supportability and consistency factors as applied to Dr. Long's opinion, the only reasoning the ALJ provided was entirely conclusory; the ALJ said only that Dr. Long's opinion was ‘supported by the medical evidence of record and by her underlying examination.’ Such a conclusory statement is an insufficient explanation of the supportability factor and is grounds for remand." (internal citation omitted)); Matthews v. Comm'r of Soc. Sec. , No. 1:17-cv-00371-MAT, 2018 WL 4356495, *3 (W.D.N.Y. Sept. 13, 2018) ("The ALJ's failure to explain his assessment of this portion of Dr. Baskin's opinion prevents the Court from meaningfully reviewing his decision, and warrants remand."). Accordingly, remand is also required on this basis. On remand, the ALJ must articulate in a more detailed fashion his assessment of Dr. Fabiano's opinion, including how he considered the "supportability" and "consistency" factors.
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. 10) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.