Shillenn v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

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JAMES L. SHILLENN, III,

Plaintiff, 1:17-cv-01225-MAT

DECISION AND ORDER

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Commissioner of Social Security,

Defendant.

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INTRODUCTION

James L. Shillenn, III (“Plaintiff”), represented by counsel,

brings this action under 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 his

application for Disability Insurance Benefits (“DIB”). Docket

No. 1. The Court has jurisdiction over the matter pursuant to

42 U.S.C. § 405(g). Presently before the Court are the parties’

competing motions for judgment on the pleadings pursuant to

Rule 12(c) of the Federal Rules of Civil Procedure. See Docket

Nos. 8, 14, 16. For the reasons set forth below, Plaintiff’s

motion for judgment on the pleadings is granted, and Defendant’s

motion is denied. The case is remanded to the Commissioner for

further proceedings consistent with this Decision and Order.

PROCEDURAL BACKGROUND

On November 21, 2013, Plaintiff protectively filed an

application for DIB, alleging disability as of September 28, 2010,

due to the following conditions: “[b]ursae and tendon disorder of

shoulder, hand and wrist; tenosynovitis hand and wrist right side;

shoulder region affections right side; bursae and tendon disorders

right shoulder; dyslexia developmental; epilepsy; anxiety;

depressive disorder; carpal tunnel right wrist; hypertension; [and]

chronic liver disease non-alcoholic.” Administrative Transcript

(“T.”) 16, 59-61. The claims were initially denied on February 19,

2014. T. 16. At Plaintiff’s request, a video hearing was

conducted on April 27, 2016, by administrative law judge (“ALJ”)

Paul F. Kelly. T. 16, 31-58. Plaintiff appeared in Buffalo New

York, and the ALJ presided over the hearing from Albany, New York.

Id. The ALJ issued an unfavorable decision on July 28, 2016.

T. 13-26. Plaintiff appealed the decision to the Appeals Council,

which denied his request for review on September 26, 2017,

making the ALJ’s decision the final determination of the

Commissioner. T. 1-3. This action followed.

THE ALJ’S DECISION

The ALJ applied the five-step sequential evaluation

promulgated by the Commissioner for adjudicating disability claims.

See 20 C.F.R. § 404.1520(a). The ALJ initially found that

Plaintiff met the insured status requirements of the Act through

December 31, 2015. T. 18. At step one of the sequential

evaluation, the ALJ found that Plaintiff had not engaged in

substantial gainful activity from September 28, 2010, the alleged

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onset date, through December 31, 2015, Plaintiff’s date last

insured. Id.

At step two, the ALJ determined that Plaintiff had the

following “severe” impairments: status-post right shoulder surgery;

status-post right carpal tunnel release surgery; tenosynovitis of

the radial styloid; right hand and wrist tenosynovitis; and right

shoulder bursa and tendon disorder. Id. The ALJ also determined

that Plaintiff’s medically determinable impairments of adjustment

disorder, post-traumatic stress disorder, and major depressive

disorder, did not cause significant work-related functional

limitations and thus were non-severe. T. 19.

At step three, the ALJ found that Plaintiff’s impairments did

not singularly or in combination meet or medically equal the

severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. Id. The ALJ specifically considered

Listing 1.00. T. 21.

Before proceeding to step four, the ALJ found that Plaintiff

retained the residual functional capacity (“RFC”) to perform light

work, as defined in 20 C.F.R. § 404.1567(b), except that he: “has

the ability to lift up to 20 pounds occasionally and lift and carry

10 pounds frequently; stand and walk for about 6 hours during a

workday with normal breaks; sit for up to 6 hours during a workday

with normal breaks; frequently climb ramps and stairs; never climb

ladders, ropes, or scaffolds; frequently balance, stoop, kneel, and

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crouch; never crawl; never reach overhead with the right upper

extremity; never reach in other directions with the right upper

extremity; never handle or finger with the right upper extremity;

occasionally feel with the right upper extremity; must avoid

concentrated exposure to unprotected heights and hazardous

machinery; and is limited to simple, routine tasks.” T. 21.

At step four, the ALJ concluded that, through the date last

insured, Plaintiff was unable to perform any past relevant work.

T. 24.

At step five, the ALJ found that, considering Plaintiff’s age,

education, work experience, and RFC, there are jobs that exist in

significant numbers in the national economy that Plaintiff could

perform, including the representative occupations of ticket taker,

surveillance system monitor, and usher. T. 25. The ALJ

accordingly found that Plaintiff was not disabled as defined in the

Act. T. 26.

SCOPE OF REVIEW

A district court may set aside the Commissioner’s

determination that a claimant is not disabled only if the factual

findings are not supported by “substantial evidence” or if the

decision is based on legal error. 42 U.S.C. § 405(g); see also

Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The

district court must accept the Commissioner’s findings of fact,

provided that such findings are supported by “substantial evidence”

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in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings

“as to any fact, if supported by substantial evidence, shall be

conclusive”). “Substantial evidence means ‘such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)

(quotation omitted). The reviewing court nevertheless must

scrutinize the whole record and examine evidence that supports or

detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774

(2d Cir. 1998) (citation omitted). “The 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)).

DISCUSSION

Plaintiff contends that remand is warranted because: (1) the

ALJ’s step five finding was not supported by the vocational

expert’s testimony, because the RFC does not match the hypothetical

questions posed to the vocational expert at the hearing; (2) the

ALJ failed to weigh the January 2014 opinion of Dr. Ransom, a

consultative examiner; (3) the ALJ failed to resolve the conflict

between the vocational expert’s testimony and the information

contained in the DOT; and (4) the ALJ failed to properly develop

the record as to Plaintiff’s alleged illiteracy. See Docket No. 8-

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1 at 20-28. For the reasons explained below, the Court finds that

the ALJ erred by failing to adequately consider and weigh

Dr. Ransom’s opinion. This error requires remand to the

Commissioner for further administrative proceedings.

I. The ALJ Failed to Weigh the Opinion of Dr. Ransom, and Remand

is Required

Plaintiff saw Dr. Ransom on January 31, 2014, for an Adult

Psychiatric Evaluation. T. 734-37. Following the examination,

Dr. Ransom found that Plaintiff showed “no evidence of difficulty

following and understanding simple directions and instructions,

perform[ing] simple tasks independently, maintain[ing] attention

and concentration for simple tasks, maintain[ing] a simple regular

schedule and learn[ing] simple new tasks.” T. 736. However,

Dr. Ransom opined that Plaintiff “would have mild difficulty

performing complex tasks, relating adequately with others and

appropriately dealing with stress.” Id. Dr. Ransom found that

these areas of difficulty were “secondary to posttraumatic stress

disorder, currently mild,” and “major depressive disorder,

currently mild,” and were consistent with Plaintiff’s allegations

and psychiatric difficulties, which would “mildly” interfere with

his ability to function on a daily basis. Id. While the ALJ

briefly discussed Dr. Ransom’s examination and opinion at step two

of the sequential analysis (see T. 19-20 (finding that Plaintiff

had “mild limitations” in the functional areas of activities of

daily living; social functioning; and concentration, persistence or

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pace)), the ALJ failed to weigh Dr. Ransom’s opinion, and he did

not discuss the opinion when explaining how he arrived at the RFC.

In assessing a disability claim, an ALJ must consider and

weigh the various medical opinions of record. The Commissioner’s

regulations provide that “[r]egardless of its source, [the ALJ]

will evaluate every medical opinion [he] receive[s].” 20 C.F.R.

§ 404.1527(d). The failure to do so is an error warranting remand.

See, e.g., Wider v. Colvin, 245 F. Supp. 3d 381, 388 (E.D.N.Y.

2017) (“ALJs are required to weigh and evaluate ‘every medical

opinion.’”) (citation omitted); Harvey v. Astrue, No. 09-CV-00020

TJM, 2010 WL 4806985, at *4 (N.D.N.Y. Sept. 7, 2010) (“[T]he ALJ

failed to evaluate, or even mention, Dr. Greenky’s August 2007

opinion. . . . Indeed, the ALJ’s discussion of Dr. Greenky’s

lengthy treatment history with Plaintiff consisted entirely of

mentioning a few treatment notes in 2001. The ALJ’s complete

failure to evaluate Dr. Greenky’s opinions amounts to error worthy

of remand.”) (internal citation omitted), adopted, 2010 WL 4791588

(N.D.N.Y. Nov. 18, 2010). Accordingly, the ALJ’s failure to weigh

Dr. Ransom’s opinion in assessing Plaintiff’s mental limitations is

an error requiring remand.

Defendant argues that, even if the ALJ had weighed

Dr. Ransom’s opinion, it would not have changed the result because

the ALJ determined that Plaintiff’s mental impairments were non-

severe. See Docket No. 14-1 at 21-22. The Court is cognizant that

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the ALJ found that Plaintiff’s mental impairments, including

adjustment disorder, post-traumatic stress disorder, and major

depressive disorder, were non-severe. See T. 19. However, this

does not relieve the ALJ from considering Plaintiff’s mental

impairments when assessing the RFC. See Parker-Grose v. Astrue,

462 F. App’x 16, 18 (2d Cir. 2012) (“even if this Court concluded

that substantial evidence supports the ALJ’s finding that [the

plaintiff’s] mental impairment was nonsevere, it would still be

necessary to remand this case for further consideration because the

ALJ failed to account [the plaintiff’s] mental limitations when

determining her RFC. A RFC determination must account for

limitations imposed by both severe and nonsevere impairments.”);

Shelley v. Commissioner, No. 1:18-cv-697-DB, 2019 WL 4805023, at *7

(W.D.N.Y. Oct. 1, 2019) (“To determine the RFC, the ALJ must

consider all the relevant evidence, including medical opinions and

facts, physical and mental abilities, non-severe impairments, and

a claimant’s subjective complaints.”); see also Brown v.

Commissioner, No. 3:16-CV-0941(WBC), 2017 WL 3034311, at *7

(N.D.N.Y. July 17, 2017) (ALJ erred in analysis of medical opinion

evidence because she improperly discounted opinions because, among

other reasons, they were based in part on impairments she deemed to

be non-severe).

The ALJ clearly found that Plaintiff’s mental impairments had

some limitation on his functioning, as the RFC specifies that

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Plaintiff is limited to “simple, routine tasks.” See T. 21.

Further, the ALJ discussed and weighed the opinion of consultative

examiner Dr. Santarpia, who in June 2016 performed an Intelligence

Evaluation and Psychiatric Evaluation, and completed a Medical

Source Statement relating to Plaintiff’s mental abilities. See T.

1027-39; see also T. 24 (discussing and weighing Dr. Santarpia’s

June 2016 opinion, and concluding that “[b]ased upon the claimant’s

testimony at [the] hearing, his work history, and findings during

the consultative evaluation, . . . the claimant would be limited to

simple, routine tasks. I have given significant weight to the

opinion of Dr. Santarpia.”). Defendant’s argument relating to

Plaintiff’s mental impairments being “non-severe” does not explain

why the RFC does not contain the additional limitations assessed by

Dr. Ransom, i.e., in relating with others and dealing with stress,

or why the ALJ considered the opinion offered by Dr. Santarpia, but

neglected to weigh Dr. Ransom’s opinion.

Defendant also contends the ALJ’s failure to identify the

weight given to Dr. Ransom’s opinion was “inconsequential” because

the RFC finding is consistent with Dr. Ransom’s opinion. See

Docket No. 14-1 at 21. As noted above, Dr. Ransom opined that

Plaintiff had limitations for performing complex tasks, relating

adequately with others, and appropriately dealing with stress.

T. 736. The RFC, which limits Plaintiff to “simple, routine

tasks,” accounts only for Plaintiff’s limitation for performing

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complex tasks. The written determination does not explain how this

limitation addresses Plaintiff’s ability to relate adequately with

others or appropriately deal with stress.

In resolving evidence, an ALJ is entitled to accept parts of

a doctor’s opinion and reject others. See Veino v. Barnhart, 312

F.3d 578, 588-89 (2d Cir. 2002). However, an ALJ may not credit

some of a doctor’s findings while ignoring other significant

deficits that the doctor identified without providing some

reasonable explanation. See Shaw v. Chater, 221 F.3d 126, 135

(2d Cir. 2000) (finding error where the ALJ relied on part of a

physician’s opinion but rejected other portions without

explanation); see also Labonte v. Berryhill, No. 16-CV-518-FPG,

2017 WL 1546477, at *3 (W.D.N.Y. May 1, 2017) (“when an ALJ adopts

only portions of a medical opinion he or she must explain why the

remaining portions were rejected.”). The written determination

does not contain any explanation as to why the ALJ apparently did

not accept the portions of Dr. Ransom’s opinion assessing

limitations for relating adequately with others or appropriately

dealing with stress. The ALJ’s failure to explain his assessment

of these portions of Dr. Ransom’s opinion prevents the Court from

meaningfully reviewing the decision, and warrants remand. See

Marthe v. Colvin, No. 6:15-cv-0643(MAT), 2016 WL 3514126, at *8

(W.D.N.Y. June 28, 2016) (the ALJ’s failure to specify reasons for

discounting a medical opinion prevented the Court from conducting

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a meaningful review of the substantiality of the evidence

supporting the ALJ’s decision).

In sum, the opinion offered by Dr. Ransom, on its face,

assessed limitations not included in the RFC. Without further

explanation by the ALJ, the Court is unable to discern why he chose

to discount those assessed limitations, and therefore whether the

RFC is supported by substantial evidence. Accordingly, remand is

required. On remand, the ALJ is directed to consider, discuss, and

explicitly weigh Dr. Ransom’s opinion. The ALJ should explain his

reasoning for adopting or rejecting certain portions of

Dr. Ransom’s opinion, so that the Court may conduct a meaningful

review of the decision.

II. Plaintiff’s Remaining Arguments

Finding remand necessary for the reasons explained above, the

Court need not and does not reach Plaintiff’s remaining arguments

concerning any discrepancies between the vocational expert’s

testimony and the RFC, and the ALJ’s failure to develop the record

concerning Plaintiff’s alleged illiteracy.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 8) is granted to the extent that the

Commissioner’s decision is reversed, and the matter is remanded for

further proceedings consistent with this Decision and Order.

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Defendant’s motion for judgment on the pleadings (Docket No. 14) is

denied. The Clerk of Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

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HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: October 30, 2019

Rochester, New York

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