King v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MURRAY LAMONT KING, JR.,

Plaintiff,

DECISION AND ORDER

-vs-

18-CV-6586-MJP

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

INTRODUCTION

Murray Lamont King, Jr. (“Plaintiff”) brings this action pursuant to

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3)

seeking judicial review of a final decision of the Commissioner of Social

Security (“Commissioner”) denying his application for Supplemental Security

Income (“SSI”). Pursuant to 28 U.S.C. § 636(c) the parties have consented to

the disposition of this case by a United States Magistrate Judge. (ECF No. 19.)

Presently before the Court are cross-motions for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF

Nos. 13 & 17.) For the reasons set forth below, this matter must be remanded

for a rehearing.

PROCEDURAL BACKGROUND

On November 5, 2012, Plaintiff protectively filed an application for SSI

alleging disability as of March 6, 2010, including multiple gunshot wounds,

mental health issues, back problems, hip problems and a knee injury. (R.1 105,

49.) The Social Security Administration denied Plaintiff’s claim on February

20, 2013. (R. 48–67.) On July 8, 2014, a hearing was held before an

Administrative Law Judge (“A.L.J.”). (R. 414.) Plaintiff participated in the

hearing and was represented by counsel. (R. 414.) A vocational expert was also

present at the hearing. (R. 414.) The A.L.J. issued an unfavorable decision on

August 11, 2014. (R. 433–43.) The Appeals Council denied Plaintiff’s request

for review (R. 1.), after which Plaintiff appealed to this Court. On April 11,

2016, the Honorable Michael A. Telesca remanded the case, citing three

specific issues to be addressed in further proceedings, with judgment entered

on April 12, 2016. (R. 477–90, 491.) The Appeals Council remanded the case to

the A.L.J. (R. 492.)

On September 26, 2017, a second hearing was held before the same

A.L.J. who held the first hearing. (R. 385–413.) Plaintiff appeared with

counsel. (Id.) Vocational Expert Peter Mann was also present and testified at

the second hearing (Id. at 385.) The A.L.J. issued a second unfavorable decision

on April 13, 2018. (R. 365–78.) Plaintiff commenced the present action on

August 13, 2018. (Complaint, ECF No. 1.)

1 “R __” refers to the page in the Administrative Record filed by the Commissioner of

Social Security.

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear

claims based on the denial of Social Security benefits. Section 405(g) provides

that the District Court “shall have the power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when

considering a claim, the Court must accept the findings of fact made by the

Commissioner, provided that such findings are supported by substantial

evidence in the record. Substantial evidence is defined as “‘more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));

see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the

Commissioner’s findings, the Court must “examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be

drawn.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v.

Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits

the scope of the Court’s review to two inquiries: whether the Commissioner’s

findings were supported by substantial evidence in the record, and whether

the Commissioner’s conclusions are based upon an erroneous legal standard.

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

Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits

case de novo).

A person is disabled for the purposes of SSI and disability benefits if he

or she is unable “to engage in any substantial gainful activity by reason of any

medically determinable physical or mental 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.” 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).

In assessing whether a claimant is disabled, the A.L.J. must employ a five-step

sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)

(per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial

gainful activity;

(2) if not, whether the claimant has any “severe impairment”

that “significantly limits [the claimant’s] physical or mental

ability to do basic work activities”;

(3) if so, whether any of the claimant’s severe impairments

meets or equals one of the impairments listed in Appendix 1 of

Subpart P of Part 404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments,

the claimant retains the residual functional capacity [(“RFC”)] to

perform his past work; and

(5) if not, whether the claimant retains the [RFC] to perform

any other work that exists in significant numbers in the national

economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675

F.2d at 467. “The claimant bears the burden of proving his or her case at steps

one through four[;] . . . [a]t step five the burden shifts to the Commissioner to

‘show there is other gainful work in the national economy [which] the claimant

could perform.’” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting

Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

ANALYSIS

Plaintiff raises two issues for the Court’s review, both relating to the

A.L.J.’s RFC determination. First, Plaintiff asserts that the A.L.J.’s mental

RFC is not supported by substantial evidence and resulted from legal errors.

(Pl.’s Mem. of Law at 1, Apr. 26, 2019, ECF. No. 13-1.) Plaintiff contends that

the A.L.J. failed to follow this Court’s instructions upon prior remand and that

he also failed to properly weigh the remaining psychological opinion evidence,

which rendered the RFC unsupported by substantial evidence. (Id.). The

second issue Plaintiff raised is that the A.L.J.’s physical RFC is not supported

by substantial evidence and resulted from legal error. (Id.). For the reasons set

forth below, the Court finds that this case must be remanded for a further

hearing.

The A.L.J. Failed to Comply with the Directives of both this Court and

the Appeals Council Provided on Prior Remand of this Case and the

RFC is Not Supported by Substantial Evidence.

An A.L.J.’s failure to comply with the Appeals Council’s remand order

for further proceedings consistent with the order of the court—here, Judge

Telesca’s April 11, 2016 Decision and Order—constitutes reversible error.

Daumen v. Berryhill, 17-CV-514-HBF, 2018 WL 6380385, at *5 (W.D.N.Y.

December 6, 2018) (remanding case where A.L.J. failed to comply with the

Appeals Council’s specific instructions on initial remand); Elvis v. Colvin, 29

F. Supp. 3d 288, 299 (W.D.N.Y. 2014) (A.L.J.’s refusal to comply with Appeals

Council’s directives on remand is erroneous as a matter of law); Scott v.

Barnhart, 592 F. Supp. 2d 360, 370 (W.D.N.Y. 2009) (remanded for failure to

“to comply with the directives of the Appeals Council and deal with the

deficiencies identified there.”). Indeed, 20 C.F.R. § 404.977(b) provides: “The

administrative law judge shall take any action that is ordered by the Appeals

Council and may take any additional action that is not inconsistent with the

Appeals Council’s remand order.” (emphasis added.)

In this Court’s Decision and Order, dated April 11, 2016, (R. 477–90),

Judge Telesca found that he was “unable to conclude that the RFC assessment

[was] based on substantial evidence.” (R. 484.) The Court remanded the

A.L.J.’s August 11, 2014 decision, specifically directing the A.L.J. to “request a

mental RFC assessment from one of Plaintiff’s treating psychiatrists, to re-

weigh the opinions of Plaintiff’s treating therapists, and to reconsider

Plaintiff’s RFC in light of the entire record.” (R. 490.) (emphasis in original.)

The Appeals Council thereafter remanded the case “to an Administrative Law

Judge for further proceedings consistent with the order of the court.” (R. 494.)

The Court finds that on remand, the A.L.J. failed to adhere to the last directive

contained in Judge Telesca’s Decision and Order regarding reconsidering

Plaintiff’s mental RFC, thereby failing to comply with the Appeals Council’s

order. This is erroneous as a matter of law and remand is warranted.

Judge Telesca directed the A.L.J. to reconsider Plaintiff’s RFC because

there was a disconnect between the mental assessments of Plaintiff conducted

by Licensed Master Social Worker (“LMSW”) Shannon Mackey and the A.L.J.’s

RFC determination. (R. 482–84.) In connection with the medical assessments,

LMSW Mackey completed forms that indicated that Plaintiff was “Moderately

limited,” defined on the form as “Unable to function 10–25% of the time.” (R.

241, 246, 483.) Specifically, on June 2, 2011, LMSW Mackey found that

Plaintiff was moderately limited in two functional areas: performing simple

and complex tasks independently and performing low stress and simple tasks.

(R. 241.) In a later assessment on February 27, 2012, LMSW Mackey included

the same two limitations listed above, but also added that Plaintiff is

moderately limited in his ability to understand and remember simple

instructions and directions. (R. 246.) During the hearing conducted on July 8,

2014, a vocational expert testified that an individual with the moderate

limitations (i.e., worst case being off-task 25% of the day) assessed by LMSW

Mackey would not be able to sustain employment over time. (R. 430.)

The A.L.J. gave “some weight” to LMSW Mackey’s February 2012

opinion, crediting that “her finding that the claimant has moderate psychiatric

limitation is supported by the record” but discrediting LMSW Mackey’s finding

that Plaintiff was precluded from working for 3 to 6 months as it was not

supported by the record. (R. 441.) Ultimately, the A.L.J. found that Plaintiff

had the capacity to perform simple work, which contradicts LMSW Mackey’s

assessment that Plaintiff was moderately limited—off-task 10–25% of the

time—and the vocational expert’s finding that an individual with this

limitation would be unemployable. (R. 430; 439.) In other words, the A.L.J.’s

conclusion that Plaintiff could perform simple work, is contradicted by the

weight he gave to LMSW Mackey’s February 2012 assessment and, therefore,

Judge Telesca found that the A.L.J.’s RFC was not supported by substantial

evidence. (R. 484.)

The Court agrees with Plaintiff that the A.L.J. failed to follow the

directives of this Court and the Appeals Council upon remand with respect to

reassessing the RFC and in particular failed to properly weigh LMSW

Mackey’s opinion on remand. (Pl.’s Mem. of Law at 21.) The RFC determined

by the A.L.J. following the second hearing is as follows:

claimant has the residual functional capacity to perform

sedentary work as defined in 20 CFR 416.967(a) with the

following limitations: occasionally lift and/or carry 10 pounds;

frequently lift and/or carry less than 10 pounds; stand and/or

walk about two hours in an eight hour workday; sit about six

hours in an eight hour workday; occasionally push and/or pull 10

pounds; occasionally climb ramps and/or stairs, balance, stoop,

kneel, crouch, and crawl; never climb ladders ropes scaffolds;

understand, remember, and carry out simple instructions and

tasks; occasionally interact with co-workers and supervisors;

never work in conjunction with co-workers; little to no contact

with the general public; able to work in a low stress work

environment (i.e. no supervisory duties, no independent decision-

making required, no strict production quotas, minimal changes in

work routine and processes, etc.); and is able to consistently

maintain concentration and focus for up to two hours at a time.

(R. 370.)

With respect to re-evaluating LMSW Mackey’s opinion, the A.L.J.

acknowledged that LMSW Mackey found Plaintiff to be “moderately limited

(defined as unable to function 10%–25% if the time) in the capacity to perform

simple and complex tasks independently, and perform low stress and simple

tasks.” (R. 371.) Confusingly, despite this acknowledgment, the A.L.J. referred

to the cited limitations as “not overly restrictive.” (R. 371.) The A.L.J. then

accorded “some weight” to LMSW Mackey’s opinions based upon the treating

relationship, but found that LMSW Mackey’s “opinion of only moderate

functional limitations is not consistent with the conclusory opinion that the

claimant is unable to work.” (R. 371–72.)

The Court finds that the A.L.J. once again utilized his own

understanding of the word “moderate” instead of that defined on the forms

completed by LMSW Mackey. This is evident given that the A.L.J. found that

LMSW Mackey’s finding of moderate limitations was inconsistent with her

“conclusory opinion that claimant is unable to work” despite the fact that the

form completed by LMSW Mackey indicated that Plaintiff was unable to

function 10–25% of the time. (R. 371–72.) Further, the A.L.J. concluded that

the limitations assessed by LMSW Mackey were “not overly restrictive.” (R.

371.) Also at odds with the A.L.J.’s conclusions is the testimony given by the

vocational expert:

Q. (Att’y) So, if the claimant were unable to maintain attention

and concentration for work tasks between ten and 25 percent of

the time, they would be precluded from performing—

A. (VE) All unskilled work.

Q. All unskilled work, including—

A. Twenty-five percent, you have to go with the worst-case

scenario and that’s very high. I’d say no work.

(R. 410.)

The Commissioner cites to case law from the Second Circuit and the

Northern District of New York for the definition of “moderate limitations.”

(Commissioner’s Mem. of Law at 22, July 24, 2019, ECF No. 17-1.) However,

this argument misses the mark because in this case the controlling definition

was already contained on the form completed by LMSW Mackey. In sum, the

RFC does not comport with LMSW Mackey’s opinions or the vocational expert’s

assessment. Once again, the A.L.J. seems to have applied his own definition of

“moderate” rather than that word as defined on LMSW Mackey’s form when

making the RFC determination.

As Plaintiff points out (Pl.’s Mem. of Law at 22–23), the new RFC is

almost identical to the previous one, except that the A.L.J. added that Plaintiff

is “able to work in a low stress work environment (i.e. no supervisory duties,

no independent decision-making required, no strict production quotes,

minimal changes in work routine and processes, etc.” (R. 370.) It is unclear why

the A.L.J. added this to the RFC as he provides no explanation for doing so.

And, in any event, this functional limitation does not reconcile LMSW

Mackey’s functional limitations with the A.L.J.’s RFC. The A.L.J. also

inexplicably retained his finding in the RFC that Plaintiff can “understand,

remember, and carry out simple instructions and tasks,” despite LMSW

Mackey’s finding that Plaintiff was moderately limited in his ability to perform

simple and complex tasks independently. (R. 246.) For these reasons, the Court

finds that the A.L.J.’s determination that Plaintiff was not disabled is not

supported by substantial evidence. The forgoing errors require reversal and

remand. Since remand is required, the Court need not address the other

argument advanced by Plaintiff in support of his motion.

CONCLUSION

For the foregoing reasons, the Court grants Plaintiff's motion for

judgment on the pleadings (ECF No. 13), and denies the Commissioner's

motion for judgment on the pleadings (ECF No. 17). The case is remanded

pursuant to the fourth sentence of 42 U.S.C. § 405(g) for an expedited hearing.

The Clerk of the Court is directed to enter judgment in Plaintiff’s favor and

close this case.

IT IS SO ORDERED.

DATED: March 6, 2020

Rochester, New York

/s/ Mark W. Pedersen

MARK W. PEDERSEN

United States Magistrate Judge